author: Hoover, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Jarod E. BILLITER, Defendant-Appellant.
    No. 15CA3720
    Court of Appeals of Ohio, Fourth District, Scioto County.
    RELEASED February 27, 2018
    Steven H. Eckstein, Washington Court House, Ohio, for Appellant.
    Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
    DECISION AND JUDGMENT ENTRY
   Hoover, P.J.

{¶ 1} Defendant-appellant, Jarod Billiter ("Billiter"), appeals the judgment of the Scioto County Court of Common Pleas convicting him of multiple trafficking offenses and sentencing him to 54 months in prison. On appeal, Billiter contends that the trial court erred in (1) accepting pleas that were unknowingly, unintelligently, and involuntarily made, and (2) failing to make the necessary consecutive-sentence findings.

{¶ 2} For the following reasons, we affirm the judgment of the trial court.

I. Facts and Procedural History

{¶ 3} On February 19, 2015, Billiter was indicted on two counts of trafficking in heroin in an amount less than 1 gram in violation of R.C. 2925.03(A)(1), 2925.03(C)(6)(a), and 2925.03(C)(6)(b), felonies of the fourth degree; one count of aggravated trafficking in fentanyl in an amount less than the bulk amount in violation of R.C. 2925.03(A)(1) and 2925.03(C)(1)(a), a felony of the fourth degree; one count of aggravated trafficking in fentanyl in an amount less than the bulk amount in the vicinity of a juvenile, in violation of R.C. 2925.03(A)(1), 2925.03(C)(1)(a), a felony of the third degree; one count of possession of heroin in an amount less than one gram, in violation of R.C. 2925.11(A) and 2925.11(C)(6)(a), a felony of the fifth degree; two counts of aggravated possession of fentanyl in an amount less than the bulk amount, in violation of R.C. 2925.11(A) and 2925.11(C)(1)(a), felonies of the fifth degree; one count of possession of heroin in an amount less than five grams in violation of R.C. 2925.11(A) and 2925.11(C)(6)(b), a felony of the fourth degree; and one count of endangering children in violation of R.C. 2919.22(A) and 2929.22(E)(2)(a), a misdemeanor of the first degree. He pleaded not guilty.

{¶ 4} On September 17, 2015, a change-of-plea hearing was held. The trial court indicated that a negotiated plea agreement had been reached and summarized that agreement as follows:

It's the Court's understanding he's going to change his plea to Counts 1 and 3 Trafficking in Heroin, both felonies of the fourth degree, in violation of 2925.03(A)(1) and 2925.03(C)(6)(A), Count 2 Aggravated Trafficking, a felony of the fourth degree, in violation of 2925.03(A)(1) and 2925.03(C)(1)(A), and Count 4 Aggravated Trafficking, a felony of the third degree, in violation of 2925.03(A)(1), 2925.03(C)(1)(A) and 2925.03(C)(1)(B).
The record should further reflect its a negotiated plea, pursuant to Section 2953.08(D), and Criminal Rule 11F, that as long as he abides by his conditions of bond he will receive an aggregate three year prison term with eligibility for judicial release at two years as long as he has no disciplinary conduct marks while he's in prison and participates in every single program they offer him. I'll grant him a conditional release for thirty days beginning-as soon as he gets hooked up with his * * * bracelet for electronically monitored house arrest, leaving the sentencing for October 16th, 2015 at 11:30.
If he messes this up in any way I'm going to max him on every case, which means you get three, four and a half, five, six, seven and a half years. I'm doing this so he can be there to witness the birth of his baby.

(Emphasis added.)

{¶ 5} Billiter subsequently entered a plea of guilty to two counts of trafficking in heroin in violation of R.C. 2925.03(A)(1) and 2925.03(C)(6)(a), felonies of the fourth degree, one count of aggravated trafficking in violation of R.C. 2925.03(A)(1), 2925.03(C)(1)(a), and 2925.03(C)(1)(b), a felony of the third degree, and one count of aggravated trafficking in violation of R.C. 2925.03(A)(1) and 2925.03(C)(1)(a), a felony of the fourth degree.

{¶ 6} On October 16, 2015, Billiter appeared for his sentencing hearing, and tested positive for heroin and suboxone. At the beginning of the hearing, the trial court explained that Billiter had already entered into a negotiated plea in which he would "get three years and be judicially released at two years." However, the trial court continued with the following:

* * * I let him out and he's tested positive for heroin and suboxone today. Now we'll renegotiate the plea, Mr. Edwards, that the total plea will be four years and six months, with eligibility for judicial release to [start] at three years as long as he has no disciplinary conduct marks against him while he's in prison and participates in every single program they offer him. If he has disciplinary conduct marks and fails-or fails to participate in any one program then he will serve the entire prison term.

{¶ 7} The trial court inquired of Billiter's trial counsel, the prosecutor, and Billiter as to whether this was their understanding of the renegotiated agreement. All answered affirmatively.

{¶ 8} The trial court then sentenced Billiter to a total of 54 months in prison. His convictions and sentence were journalized by way of entry dated October 20, 2015. All remaining counts of the indictment were dismissed. The sentencing entry refers to Billiter's sentence as an "agreed sentence."

{¶ 9} Billiter appealed, but his counsel advised us that he had reviewed the record and could discern no meritorious claim for appeal. Counsel moved for leave to withdraw under Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In January 2017, we granted the motion to withdraw but having found one potentially arguable issue for appeal, we assigned present counsel to brief the potentially arguable issue as well as any other issues found in the record.

{¶ 10} Billiter's brief is now before the Court.

II. Assignments of Error

{¶ 11} Billiter assigns the following errors for our review:

Assignment of Error No. I:
BILLITER WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT ACCEPTED AN UNKNOWING, UNINTELLIGENT, AND INVOLUNTARY GUILTY PLEA.
Assignment of Error No. II:
THE TRIAL COURT ERRED IN SENTENCING BILLITER TO CONSECUTIVE SENTENCES.

III. Law and Analysis

A. Billiter's Guilty Plea was Made Knowingly, Intelligently, and Voluntarily

{¶ 12} In his first assignment of error, Billiter contends that he was deprived of his right to due process when the trial court accepted pleas that were unknowingly, unintelligently, and involuntarily made. Billiter argues that his guilty plea was unknowing, unintelligent, and involuntary because the (1) trial court breached the original plea agreement by imposing a greater sentence on Billiter even though Billiter tested positive for heroin; (2) trial counsel was ineffective for failing to request that the original plea agreement be enforced or that he be permitted to withdraw his guilty plea; and (3) the trial court committed plain error by finding Billiter in violation of his recognizance bond, and in turn in violation of the original plea agreement.

{¶ 13} The State argues that Billiter's sentence is an agreed sentence and is therefore not reviewable pursuant to R.C. 2953.08(D)(1) which states:

A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.

{¶ 14} The record is clear that Billiter, his counsel, and the prosecutor all agreed that Billiter would serve four years and six months in prison with eligibility for judicial release after serving three years. This sentence was also imposed by the sentencing judge. But, because Billiter argues that his guilty plea was made unknowingly, unintelligently, and involuntarily, we may review the validity of the plea leading to the agreed sentence. See State v. Gavin , 4th Dist. Scioto No. 14CA3672, 2015-Ohio-2549, 2015 WL 3934821, ¶ 10, and State v. Royles , 1st Dist. Hamilton Nos. C060875-76, 2007-Ohio-5348, 2007 WL 2892017, ¶ 10.

1. Standard of Review

{¶ 15} " 'When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.' " State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). In determining whether a guilty or no contest plea was entered knowingly, intelligently, and voluntarily, an appellate court examines the totality of the circumstances through a de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards. State v. Cooper , 4th Dist. Athens No. 11CA15, 2011-Ohio-6890, 2011 WL 6959982, ¶ 35.

2. Billiter's Guilty Plea was Made in Compliance with Crim.R. 11(C)

{¶ 16} None of the three arguments propounded by Billiter with respect to his plea being defective refers to whether the plea was made in compliance with Crim.R. 11. " 'If an argument exists that can support [an] assignment of error, it is not this court's duty to root it out.' " Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009-Ohio-3299, 2009 WL 1913281, ¶ 14, quoting State v. Carman, 8th Dist. Cuyahoga No. 90512, 2008-Ohio-4368, 2008 WL 3975573, ¶ 31. Moreover, it is not our function to construct the appellant's arguments for him. "We may disregard any assignment of error that fails to present any citations to case law or statutes in support of its assertions." Frye v. Holzer Clinic, Inc., 4th Dist. Gallia No. 07CA4, 2008-Ohio-2194, 2008 WL 1976638, ¶ 12 ; see also App.R. 16(A)(7), App.R. 12(A)(2), and Albright v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709, 2007 WL 2070364, ¶ 16. However, in the interests of justice, we will examine whether Billiter's plea was in compliance with Crim.R. 11(C).

{¶ 17} " Crim.R. 11(C) governs the process that a trial court must use before accepting a felony plea of guilty or no contest." Veney at ¶ 8. Before accepting a guilty plea in a felony case, a trial court must address the defendant personally and determine that "the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing." Crim.R. 11(C)(2)(a). The court must also inform the defendant of both the constitutional and nonconstitutional rights he is waiving and determine that he "understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence." Crim.R. 11(C)(2)(b). Finally, the court must both inform and determine that the defendant understands that he "is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself." Crim.R. 11(C)(2)(c).

{¶ 18} In the case sub judice, Billiter had a change of plea hearing on September 17, 2015. At the beginning of the hearing, the trial court recited the charges and the degrees of the charges to which Billiter was entering the guilty plea:

THE COURT: * * * It's the Courts [sic] understanding he's going to change his plea to Counts 1 and 3 Trafficking in Heroin, both felonies of the fourth degree, in violation of 2925.03(A)(1) and 2925.03(C)(6)(A), Count 2 Aggravated Trafficking, a felony of the fourth degree, in violation of 2925.03(A)(1) and 2925.03(C)(1)(A), and Count 4 Aggravated Trafficking, a felony of the third degree, in violation of 2925.03 (A)(1), 2925.03(C)(1)(A), and 2925.03(C)(1)(B).

{¶ 19} The trial court also explained the maximum prison terms of the felony of the third degree as being 36 months with a maximum fine of $10,000.00 and of the felonies of the fourth degree as being 18 months with maximum fines of $5,000.00. The trial court addressed Billiter personally and asked him if he was advised by his lawyer and the court of the charges against him and the penalties provided by law; and Billiter responded, "Yes." The trial court also inquired of Billiter if he understood "all this" to which Billiter answered, "Yes." The trial court asked Billiter whether anyone had made any "additional promises, threats, or inducements" in order to get him to change his plea to guilty. Billiter answered, "No." In light of Billiter's answers, we find that the trial court complied with Crim.R. 11(C)(2)(a).

{¶ 20} Furthermore, the trial court personally asked Billiter whether he was aware that he was waiving his rights to: (1) a jury trial; (2) confrontation of witnesses against him; (3) compulsory process for obtaining witnesses in his favor; and (4) require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself or herself. The trial court complied with Crim.R. 11(C)(2)(c).

{¶ 21} The trial court informed Billiter of his constitutional and nonconstitutional rights he was waiving and determined that he understood the effect of his plea of guilty. The trial court explained to Billiter that he would accept his guilty plea; but that Billiter would be sentenced on a later date in order to allow Billiter to witness the birth of his baby. The trial court told Billiter that if he "messe[d] this up in any way I'm going to max him on every case* * *." We find that the trial court also complied with Crim.R. 11(C)(2)(b).

{¶ 22} On October 16, 2015, when Billiter returned to the trial court for his sentencing hearing, he tested positive for heroin and suboxone. Although the trial court had warned Billiter that he would be "maxed" on every case if he "messed up," the trial court apparently agreed to impose a different sentence. Instead of imposing three years with possibility of judicial release after two years, Billiter would be sentenced to four years and six months with eligibility for judicial release after three years.

{¶ 23} Even after the trial court informed Billiter of the increased sentence, Billiter did not make a motion to withdraw his guilty plea. Instead, when Billiter was asked if the increased sentence was his understanding, he responded, "Yes." Billiter was given his right of allocution.

DEFENSE COUNSEL: We'd just ask that the amended plea agreement be entered into in light of the positive drug test.
THE COURT: Okay. This-do you have anything you'd like to say, Mr. Billiter?
BILLITER: I apologize for messing up on the judicial-on the release.
THE COURT: I-I said it was not a good idea to let you out, but you wanted to be with your kids.
BILLITER: I did and I was with my kids.
THE COURT: Now you said you wanted to be with your kids and you're positive for heroin and suboxone, so how bad did you want to be with your kids?
DEFENDANT: Very badly.
THE COURT: Then why'd you do it?
DEFENDANT: I apologize.

{¶ 24} Consequently, we find that the trial court complied with Crim. R.11(C) during the initial plea colloquy in September 2015. Even though the sentence was increased from that of the original plea bargain, both parties agreed to the increased sentence. After examining the totality of the circumstances, we determine that the trial court complied with the constitutional and procedural safeguards and that Billiter's plea was entered knowingly, intelligently, and voluntarily.

3. Billiter's Specific Arguments Fail

{¶ 25} Within Billiter's first assignment of error that his plea was made unknowingly, unintelligently, and involuntarily, he makes three specific arguments that have no merit.

{¶ 26} First, Billiter claims that he did not violate any terms of the original plea agreement and that he should have received the sentence promised in the original plea agreement or be permitted to withdraw his guilty plea. Billiter argues that he abided by all conditions of bond. He contends that "abstinence from the use of controlled substances during his release was not a term of the agreement." However, the "Appointment of Counsel Arraignment and Bond Entry" includes the following: "As a condition of said bond, defendant is ordered not to ingest any illegal or non-prescribed drugs. Defendant is also subject to random drug tests at any future court proceedings." Furthermore, the "Conditions of Bond" states in pertinent part: "As a condition of your bond you must abide by the following rules: * * * 2. Refrain from using any illegal drugs or any prescription drugs, which are not subscribed to you * * *." (Emphasis sic.) Billiter signed the "Conditions of Bond" document. The record fails to demonstrate that Billiter had been released from the bond prior to testing positive for heroin and suboxone. It was Billiter who breached the original plea agreement by testing positive for heroin and suboxone.

{¶ 27} Regardless of the fact that Billiter breached the plea agreement, Billiter is in essence appealing his sentence, which he cannot do pursuant to R.C. 2953.08(D)(1). His sentence is not reviewable because it was an agreed sentence. See discussion infra at ¶¶ 13 -14.

{¶ 28} Next, Billiter argues that he received ineffective assistance of counsel when trial counsel failed to object to the trial court's voiding of the original plea agreement and renegotiation of the plea agreement. However, it was Billiter who breached the original plea agreement by testing positive for heroin and suboxone. We find no error in the trial court's refusal to honor the original plea agreement. Consequently, we find that trial counsel was not deficient for failing to make the argument that Billiter's drug use did not violate the original plea agreement. See State v. Crooms , 7th Dist. Columbiana Nos. 11 CO 17, 12 CO 9, 2014-Ohio-2928, 2014 WL 2999184, ¶ 40 (concluding that trial counsel was not deficient for omitting an argument that has no basis in law). In addition, Billiter's sentence is not reviewable for reasons previously stated.

{¶ 29} Lastly, Billiter asks this Court to find plain error in the trial court's voiding of the original plea agreement. Appellate courts take notice of plain error with the utmost of caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 78 ; State v. Patterson, 4th Dist. Washington No. 05CA16, 2006-Ohio-1902, 2006 WL 998205, ¶ 14. Plain error should only be noticed if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See State v. Bundy, 2012-Ohio-3934, 974 N.E.2d 139, ¶ 66 (4th Dist.). No plain error exists here. Billiter breached the original plea agreement by testing positive for heroin and suboxone. "Comme on faict son lict, on le treuve ."

{¶ 30} Having found Billiter's first assignment of error along with his specific arguments to be without merit, we overrule the first assignment of error.

B. Billiter's Agreed Sentence is Not Reviewable

{¶ 31} In his second assignment of error, Billiter contends that the trial court erred in failing to make consecutive-sentence findings at his sentencing hearing. Specifically, Billiter argues that his sentence was not an agreed sentence pursuant to R.C. 2953.08(D)(1) ; and therefore, the trial court was required to make consecutive-sentence findings pursuant to R.C. 2929.14(C)(4). We disagree.

{¶ 32} As discussed supra , R.C. 2953.08(D)(1) provides: "A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge." "In other words, a sentence that is 'contrary to law' is appealable by a defendant; however, an agreed-upon sentence may not be if (1) both the defendant and the state agree to the sentence, (2) the trial court imposes the agreed sentence, and (3) the sentence is authorized by law. R.C. 2953.08(D)(1). If all three conditions are met, the defendant may not appeal the sentence." State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 16. "[A] sentence is 'authorized by law' and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions." Id. at ¶ 20.

{¶ 33} Generally, a trial court must make certain findings prior to imposing consecutive sentences. R.C. 2929.14(C)(4). The trial court is required to make those findings at the sentencing hearing and to incorporate its findings into the sentencing entry; but it has no obligation to state reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.

{¶ 34} However, "an agreed sentence that involves a discretionary decision to impose consecutive sentences * * * is 'authorized by law' and unreviewable on appeal even if the trial court fails to make the consecutive-sentence findings." (Emphasis sic.) State v. Sergent , 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 29. In other words, "[i]f a jointly recommended sentence includes nonmandatory consecutive sentences and the trial judge fails to make the consecutive-sentence findings set out in R.C. 2929.14(E)(4), the sentence is nevertheless 'authorized by law,' and therefore is not appealable pursuant to R.C. 2953.08(D)(1)." Id. at ¶ 30.

{¶ 35} Here, the record indicates that Billiter's sentence was an agreed sentence, pursuant to R.C. 2953.08(D)(1). At the plea hearing, the trial court indicated that Billiter's plea was a "negotiated plea pursuant to Section 2953.08(D)." Although the original agreed sentence was later "renegotiated" by the parties at sentencing, it was done so with Billiter's express consent. Both Billiter's trial counsel and Billiter personally advised the court that they agreed with the increased sentence. Finally, the sentencing entry states that Billiter's sentence was an agreed sentence, pursuant to R.C. 2953.08(D). State v. Littlefield , 4th Dist. Washington No. 02CA19, 2003-Ohio-863, 2003 WL 546068, ¶ 11 ("It is well settled that a court speaks through its journal entries.").

{¶ 36} Because Billiter's sentence was an agreed sentence that included nonmandatory consecutive sentences, it is "authorized by law" and is not appealable, even if the trial court failed to make the consecutive-sentence findings. Sergent at ¶ 29. See generally R.C. 2925.03 and 2929.13.

{¶ 37} Accordingly, we overrule Billiter's second assignment of error.

IV. Conclusion

{¶ 38} Having overruled both of Billiter's assignments of error, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED.

McFarland, J: Concurs in Judgment and Opinion.

Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error II and Concurs in Judgment Only as to Assignment of Error I.

      This Court has announced that we no longer accept Anders motions and briefs. State v. Wilson , 2017-Ohio-5772, 83 N.E.3d 942, ¶¶ 1, 36 (4th Dist.). However, in the present case we appointed new counsel to re-brief the case in January 2017, well before we decided Wilson .

      Fred R. Shapiro, Joseph Epstein, The Yale Book of Quotations (2006), page 616, 184. Available at https://books.google.com/books?isbn=0300107986 (accessed December 18, 2017). As you must make your bed, so you must lie on it. Gabriel Harvey, Marginalia (ca. 1590) Harvey's wording is "let them...go to there bed, as themselves shall make it." The Oxford Dictionary of Proverbs notes the late fifteenth-century French comme on faict son lict, on le treuve (as one makes one's bed, so one finds it).


source: Caselaw Access Project

author: S. POWELL, P.J.

license: Public Domain

text:
    Nicholas HATFIELD, Plaintiff-Appellant, v. Ashley CORNELL, Defendant-Appellee.
    NO. CA2017-05-011
    Court of Appeals of Ohio, Twelfth District, Fayette County.
    March 5, 2018
    Jeffrey A. McCormick, 122 South Main Street, Washington C.H., Ohio 43160, for plaintiff-appellant
    Mary E. King, 153 East Court Street, P.O. Box 70, Washington C.H., Ohio 43160, for defendant-appellee
   S. POWELL, P.J.

{¶ 1} Plaintiff-appellant, Nicholas Hatfield, appeals from the decision of the Fayette County Court of Common Pleas, Juvenile Division, ordering him to undergo hair follicle drug testing, as well as terminating a shared parenting plan and granting defendant-appellee, Ashley Cornell, custody of their daughter. For the reasons outlined below, we affirm.

{¶ 2} Hatfield and Cornell are the biological parents of one child, a girl, born on February 21, 2013. Following their daughter's birth, it is undisputed the parties operated under a shared parenting plan that provided both Hatfield and Cornell with weekly parenting time. It is also undisputed that Hatfield has a history of drug use, including heroin, for which he underwent drug treatment and was prescribed Suboxone. Hatfield admittedly stopped taking his prescribed Suboxone against his doctor's advice in September of 2016.

{¶ 3} On November 2, 2016, Cornell messaged Hatfield and informed him that she would not allow him to take their daughter that day for his scheduled parenting time since she had seen his vehicle parked outside a house that had recently been subject to a search warrant that resulted in several people being arrested for drug possession.

{¶ 4} The following day, November 3, 2016, Cornell filed a motion requesting the juvenile court reallocate their parental rights and responsibilities, thereby terminating their shared parenting plan, and grant custody of their daughter to her. In support of this motion, Cornell alleged that Hatfield "is using drugs and has involved their daughter with known drug offenders." The record indicates that same day, Hatfield went to Cornell's fiancé's workplace, during which time Hatfield became very agitated and went on a verbal tirade making threats against Cornell, her parents, her fiancé, his children, and "anyone that got in his way." This included threats that Hatfield would kill Cornell's father and "f--- his wife with a big dildo."

{¶ 5} On November 10, 2016, Cornell filed a motion requesting the juvenile court order Hatfield to undergo hair follicle drug testing, a request the juvenile court granted. Shortly thereafter, Hatfield filed a motion to vacate or modify the juvenile court's order requiring him to undergo hair follicle drug testing. In support of this motion, Hatfield claimed Cornell's allegations that he was using drugs and exposing their daughter to known drug offenders was speculative at best since she "has no credible or supportable reason to suspect [him] of drug use." Nevertheless, although refusing to undergo hair follicle drug testing, Hatfield stated that he was "willing to submit to urine or blood testing as often as the Court deems it necessary to show that he is not currently using illegal substances." The juvenile court denied Hatfield's motion.

{¶ 6} On January 3 and February 28, 2017, the parties reconvened for a hearing on various motions then pending before the juvenile court. Following these hearings, the juvenile court issued a decision finding Cornell was justified in denying Hatfield his parenting time on November 2, 2016. The juvenile court further found that Cornell acted appropriately in requesting Hatfield undergo hair follicle drug testing since she had a reasonable suspicion that Hatfield may have been using drugs. The juvenile court then stated:

[Hatfield's] behavior in the Courtroom on January 3, 2017 and February 28, 2017 was alarming to the court. He was very nervous, had several outbursts, would speak softly under his breath during his examination (not in response to any question) and while other witnesses were on the witness stand.

Concluding, since he had yet to submit to the required drug testing, the juvenile court again ordered Hatfield to promptly undergo hair follicle drug testing in accordance with its prior order. The juvenile court then granted Hatfield limited parenting time with his daughter, albeit under the supervision of Hatfield's mother and/or father. The juvenile court thereafter scheduled the matter for a full hearing on Cornell's motion to reallocate the parties' parental rights and responsibilities to be held on April 27, 2017.

{¶ 7} At the hearing, the juvenile court noted that although it had ordered Hatfield to promptly submit to hair follicle drug testing as part of its March 1, 2017 decision, Hatfield had just recently been tested three days before on April 24, 2017. Upon being so notified, the juvenile court stated that it had "very serious issues" with Hatfield's credibility "throughout this entire proceeding." The juvenile court further stated that "[t]o purposely delay once again after being ordered to do it after we had the first fiasco, casts a lot of doubt on [Hatfield's] testimony and his credibility." Thereafter, upon both parties resting, the juvenile court notified the parties that it would take the matter under advisement and render a decision in due course.

{¶ 8} On May 9, 2017, the juvenile court issued a decision terminating the parties' shared parenting plan and granting custody of their daughter to Cornell. As part of this decision, the juvenile court found Hatfield had "willfully delayed submitting to [hair follicle drug testing] in order that the Court would not have the results at the hearing held on April 27, 2017." The juvenile court also found that Hatfield (1) had admittedly used heroin and marijuana in the past for which he underwent drug treatment; (2) was prescribed Suboxone that he then discontinued using against his doctor's advice; (3) was seen at a home that had recently been subject to a search that resulted in several people being arrested for drug possession; and, (4) "has threatened [Cornell] and other occupants of her residence," thus resulting in a domestic violence civil protection order being issued against him. Based on these findings, the juvenile court determined that it was in the child's best interest to terminate the parties' shared parenting plan and grant custody to Cornell, with Hatfield being awarded standard, supervised parenting time.

{¶ 9} Hatfield now appeals from the juvenile court's decision, raising two assignments of error for review.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL COURT'S TERMINATION OF THE SHARED PARENTING PLAN AND AWARD OF CUSTODY TO APPELLEE WAS AN ABUSE OF DISCRETION.

{¶ 12} In his first assignment of error, Hatfield argues the juvenile court erred by terminating the shared parenting plan and granting custody to Cornell. In support of this claim, Hatfield argues Cornell failed to produce sufficient evidence to support the juvenile court's decision that terminating the shared parenting plan and granting custody to her was in their daughter's best interest. We disagree.

{¶ 13} Based on the record properly before this court, we find the record contains ample evidence to support the juvenile court's decision that it was in the child's best interest to terminate the shared parenting plan and grant custody to Cornell. As the juvenile court found, and as the record fully supports, Hatfield "willfully delayed submitting to [hair follicle drug testing] in order that the Court would not have the results at the hearing held on April 27, 2017," thus raising serious questions about his credibility. The record further supports the juvenile court's findings that Hatfield (1) admittedly used heroin and marijuana in the past for which he underwent drug treatment; (2) was prescribed Suboxone that he then discontinued using against his doctor's advice; (3) was seen at a home that had recently been subject to a search warrant that resulted in several people being arrested for drug possession; and, (4) "has threatened [Cornell] and other occupants of her residence," thus resulting in a domestic violence civil protection order being issued against him.

{¶ 14} While Hatfield claims these issues have been greatly exaggerated, as noted above, the juvenile court had significant, justifiable concerns regarding Hatfield's credibility "throughout this entire proceeding." As the trier of fact, the juvenile court was free to believe all, part or none of the witness testimony presented, including that from both Hatfield and Cornell. Therefore, under the facts and circumstances of this case, we find no error in the juvenile court's decision to terminate the parties' shared parenting plan and grant custody to Cornell as such a decision was in the child's best interest. Accordingly, finding no error in the juvenile court's decision, Hatfield's first assignment of error is overruled.

{¶ 15} Assignment of Error No. 2:

{¶ 16} THE TRIAL COURT'S ORDER FOR APPELLANT TO SUBMIT TO HAIR FOLLICLE DRUG TESTING WAS AN ABUSE OF DISCRETION.

{¶ 17} In his second assignment of error, Hatfield argues the juvenile court erred by ordering him to undergo hair follicle drug testing. As this court has stated previously, "[d]rug testing may be ordered or agreed to when the best interest of a child is at stake." Raney v. Raney , 12th Dist. Warren CA98-07-084, 1999 WL 58162, *3 (Feb. 1, 1999). In this case, when considering Cornell had a reasonable suspicion that Hatfield may have been using drugs, coupled with the fact that Hatfield himself admitted to using heroin and marijuana in the past, the juvenile court did not err by ordering Hatfield to undergo hair follicle drug testing. In so holding, we specifically reject Hatfield's claim that there was "no evidence upon which the court could have concluded that drug testing was necessary." Simply because Hatfield denied any recent drug use does not foreclose the possibility that such use had occurred, particularly when taking into account Hatfield's alarming behavior at the January 3 and February 28, 2017 hearings before the juvenile court. Therefore, finding no error in the juvenile court's decision, Hatfield's second assignment of error is also overruled.

{¶ 18} Judgment affirmed.

RINGLAND and HENDRICKSON, JJ., concur.

      This court affirmed the decision of the Fayette County Court of Common Pleas granting Cornell a domestic violence civil protection order against Hatfield as a result of this incident. Cornell v. Hatfield , 12th Dist. Fayette No. CA2017-03-006, 2018-Ohio-549, 2018 WL 827136.

      Hatfield argues R.C. 3109.04(E)(1)(a) applies to this case, thereby requiring proof that a change of circumstances occurred before the shared parenting plan could be modified. However, because this case involves the termination of a shared parenting plan and not a modification of such a plan, it is R.C. 3109.04(E)(2)(c) that applies to this case. "[N]othing in R.C. 3109.04(E)(2)(c) requires the trial court to find a change of circumstances in order to terminate a shared parenting agreement." Curtis v. Curtis , 2d Dist. Montgomery No. 25211, 2012-Ohio-4855, 2012 WL 5076137, ¶ 7. Therefore, in order to terminate a shared parenting plan, the juvenile court need only find that terminating the shared parenting plan is in the child's best interest. A.S. v. D.G. , 12th Dist. Clinton No. CA2006-05-017, 2007-Ohio-1556, 2007 WL 959902, ¶ 34.


author: Zayas, Judge.

text:
    Karen CRISSINGER, Plaintiff-Appellee, v. The CHRIST HOSPITAL, and Abubakar Atiq Durrani, M.D., Defendant-Appellants, and Center for Advanced Spine Technologies, Inc., Defendant.
    Patrick Calligan, Plaintiff-Appellee, v. Cincinnati Children's Hospital Medical Center, and Abubakar Atiq Durrani, M.D., Defendant-Appellants, and Center for Advanced Spine Technologies, Inc., Defendant.
    Jacob Feltner, Donna Feltner, and William Feltner, Plaintiffs-Appellees, v. Cincinnati Children's Hospital Medical Center, Defendant-Appellant, and Abubakar Atiq Durrani, M.D., and Center for Advanced Spine Technologies, Inc., Defendants.
    Alissa Hightchew, Plaintiff-Appellee, v. Cincinnati Children's Hospital Medical Center, Defendant-Appellant, and Abubakar Atiq Durrani, M.D., and Center for Advanced Spine Technologies, Inc., Defendants.
    Brandon Mathis, Plaintiff-Appellee, v. Cincinnati Children's Hospital Medical Center, Defendant-Appellant, and Abubakar Atiq Durrani, M.D., and Center for Advanced Spine Technologies, Inc., Defendants.
    Alex Taylor, Plaintiff-Appellee, v. Cincinnati Children's Hospital Medical Center, Defendant-Appellant, and Abubakar Atiq Durrani, M.D., and Center for Advanced Spine Technologies, Inc., Defendants.
    NOS. C-150796 C-160157 NOS. C-160034 C-160182 NO. C-160053 NO. C-160067 NO. C-160087 NO. C-160113
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: December 27, 2017
    The Deters Law Firm, P.S.C., Matthew J. Hammer, for Plaintiffs-Appellees
    Dinsmore & Shohl, L.L.P., Jennifer Orr Mitchell, Matthew S. Arend and Jenna G. Moran, Cincinnati, for Defendant-Appellant The Christ Hospital
    Dinsmore & Shohl, L.L.P., J. David Brittingham, Thomas P. Kemp, Jr., and Allison G. Knerr, Cincinnati, for Defendant-Appellant Cincinnati Children's Hospital Medical Center
    Bonezzi Switzer Polito & Hupp Co., L.P.A., Paul W. McCartney, Cincinnati, Jason A. Paskan, Cleveland, and Thomas F. Glassman, Cincinnati, for Defendant-Appellant Abubakar Atiq Durrani, M.D.
   Zayas, Judge.

{¶ 1} In these eight consolidated appeals, defendants-appellants The Christ Hospital ("Christ"), Cincinnati Children's Hospital Medical Center ("Children's"), and Abubakar Atiq Durrani, M.D., ("Durrani") appeal from the trial court's December 15, 2015 general order. In four of these appeals, those involving plaintiffs-appellees Karen Crissinger and Patrick Calligan, we reverse the trial court's judgment and remand the causes for further proceedings. In the remaining appeals, we hold that there is no justiciable controversy, and dismiss the appeals as moot.

Background

{¶ 2} These appeals represent six cases out of over 500 filed against Durrani and the various hospitals he worked for or practiced at. These cases involve allegations that Durrani convinced the plaintiffs to undergo unnecessary spinal surgery, that he performed the surgery improperly, that he used implants "off-label" causing further problems, that he covered his actions up through fraud and destruction of evidence, and that the hospitals were also liable for his actions.

{¶ 3} Several of the plaintiffs filed their claims outside of the limitations period provided in R.C. 2305.113, the "statute of repose" for medical claims. One such plaintiff, Judith Young, challenged the constitutionality of R.C. 2305.113, as well as the constitutionality of the "peer review immunity" statutes, R.C. 2305.251 and 2305.252. The trial court in Young held these statutes unconstitutional, and also held that most of Young's claims were not "medical claims" subject to the statute of repose, in a September 2, 2015 order. Young v. Durrani , 2016-Ohio-5526, 61 N.E.3d 34, ¶ 6 (1st Dist.).

{¶ 4} Relevant to the appeals before us, the trial court then applied its Young holdings to all pending Durrani cases in a December 15, 2015 general order. All of the current appeals were taken from the general order. The appellants in the Crissinger case, Christ and Durrani, argue that the trial court erred in holding the statute of repose unconstitutional, and in overruling their respective motions to dismiss and for summary judgment. The appellants in the Calligan case, Children's and Durrani, argued the same. The appellant in the remaining cases, Children's, argued that the trial court erred in holding the peer-review immunity statutes unconstitutional.

{¶ 5} The general order began by informing the parties that the trial court did "not want the parties filing Motions which are not necessary based on these rulings." It then stated that "[a]ll Motions to Dismiss and for Summary Judgment * * * are overruled." Finally, it stated that the "Plaintiffs will be allowed to reference and ask questions regarding what information is unknown/unavailable due to the peer review privilege, as well as, if Durrani ever underwent a peer review process. The peer review process is privileged , but not if one took place or not." (Emphasis added.)

{¶ 6} After the appellants filed their notices of appeal, the appellees gave notice to both the trial court and this court that they were waiving any challenges to the peer-review immunity statutes, and moved the trial court to modify the December 15, 2015 general order to reflect their waiver.

{¶ 7} On August 26, 2016, we decided Young , 2016-Ohio-5526, 61 N.E.3d 34. Young reversed the trial court's holding that the statute of repose was unconstitutional, and remanded the cause to the trial court for dismissal of Young's medical claims. Id. at ¶ 33. We also held that Young's claims for negligence, negligent credentialing and retention, loss of consortium, fraud, products liability, and violations of the Ohio Consumer Sales Practices Act were "medical claims" subject to the statute of repose. Id. at ¶ 20 -25. Finally, we held that we lacked jurisdiction to review the trial court's decision as to the peer-review immunity statute. Id. at ¶ 12 -16.

{¶ 8} Following our Young decision, the trial court issued an order in all pending Durrani cases on October 21, 2016. It provided, in pertinent part, that the "December 15, 2015 Order shall be applied to all cases with the exception of the rulings on the statute of repose and peer review * * *. This Court will not need to rule on peer review because the Plaintiffs waived it. * * * Plaintiff's Motion to Modify General Order to Reflect Plaintiff's Decision to No Longer Challenge Ohio Peer Review is hereby sustained."

Assignments of Error

{¶ 9} Durrani's sole assignment of error in both the Crissinger and Calligan appeals is that "the trial court erred in denying appellant's motion for summary judgment, and not dismissing appellee's claims against appellant in their entirety." In the Crissinger case, Christ brings two assignments of error: that "the trial court erred by not granting the Christ Hospital's motion to dismiss"; and that "the trial court erred by declaring the statute of repose applicable to medical claims, R.C. 2305.113(C), unconstitutional." In the Calligan case only, Children's assignment of error is that "the trial court erred by declaring the statute of repose applicable to medical claims, R.C. 2305.113(C), unconstitutional and denying [its] motion for judgment on the pleadings." In all of its current appeals, Children's' assignment of error is that "the trial court erred by declaring the peer review privilege statute, R.C. 2305.252, unconstitutional and by allowing for the unfettered discovery of such material."

{¶ 10} We will address the Calligan and Crissinger appeals first, then address the remaining cases.

The Calligan and Crissinger Appeals

{¶ 11} These cases involve the applicability of the statute of repose for medical claims, R.C. 2305.113. The statute provides that "an action upon a medical * * * claim shall be commenced within one year after the cause of action accrued." R.C. 2305.113(A). It further provides, in subsections (C)(1) and (2), that "[n]o action upon a medical claim * * * claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim," and that "[i]f an action upon a medical * * * claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim, then any action upon that claim is barred."

{¶ 12} In her complaint filed on January 31, 2014, Crissinger alleged that her last date of treatment with Dr. Durrani was in August 2009, so her complaint was filed more than "four years after the occurrence of the act or omission constituting the alleged basis" of the claim. Therefore, her claims are barred if they are medical claims and if the statute of repose is constitutional. See Young , 2016-Ohio-5526, 61 N.E.3d 34, at ¶ 10.

{¶ 13} Calligan's circumstance is different than Crissinger's, because he was under the age of 18 at the time of his surgery, so the "savings statute," R.C. 2305.16, applies to his claims. That statute provides that "if a person entitled to bring any action mentioned in [ R.C. 2305.113 ] * * * is, at the time the cause of action accrues, within the age of minority * * *, the person may bring it within the respective times limited by [ R.C. 2305.113 ], after the disability is removed." Calligan's four-year limitations period therefore did not begin until his 18th birthday. However, the record establishes that Calligan turned 18 on April 5, 2009, and that he filed his complaint more than four years later on February 27, 2014. As a result, the statute of repose applies to bar his medical claims if the statute is constitutional.

{¶ 14} Young established that the scope of our review in these cases is limited to the trial court's ruling on the statute's constitutionality and issues that were "intertwined" with the trial court's decision. Young at ¶ 9.

Here, that means that we must review first whether the claims are medical claims. If they are not medical claims, the medical statute of repose does not apply, and we do not reach the issue of constitutionality. Conversely, if the claims are medical claims, the statute of repose will apply only if we conclude that it is constitutional. * * * Thus, we will review the trial court's determination that the claims against The Christ Hospital were not medical claims as a part of our review of the constitutionality of the medical statute of repose.

Id. at ¶ 10.

{¶ 15} As to whether Crissinger's and Calligan's claims are "medical claims," we first look to the statute's definition of "medical claim." R.C. 2305.113(E)(3) defines a medical claim as "any claim that is asserted in any civil action against a physician [or] hospital * * * and that arises out of the medical diagnosis, care, or treatment of any person." This definition includes:

(a) Derivative claims for relief that arise from the plan of care, medical diagnosis, or treatment of a person;
(b) Claims that arise out of the plan of care, medical diagnosis, or treatment of any person and to which either of the following applies:
(i) The claim results from acts or omissions in providing medical care.
(ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medical diagnosis, care, or treatment.

{¶ 16} Crissinger brought claims against Christ for negligence, negligent credentialing and retention, fraud, and spoliation of evidence; and brought claims against Durrani for negligence, battery, lack of informed consent, intentional infliction of emotional distress ("IIED"), fraud, and spoliation of evidence. Calligan brought the same claims against Children's and Durrani, except that, against Children's, he brought a claim for vicarious liability rather than a claim for negligence. Crissinger's and Calligan's complaints used nearly identical language in their allegations for each claim.

{¶ 17} Our previous holding in Young established that the claims for negligence, negligent credentialing, and fraud were "medical claims" within the statute of repose, and we follow that holding in these cases. Young , 2016-Ohio-5526, 61 N.E.3d 34, at ¶ 20-23. The remaining question is whether claims for battery, lack of informed consent, IIED, vicarious liability, and spoliation of evidence are "medical claims." We hold that they are.

{¶ 18} The plaintiffs' battery claims alleged that "Dr. Durrani committed battery against plaintiff by performing a surgery that was unnecessary, contraindicated for Plaintiff's medical condition, and for which he did not properly obtain informed consent * * *." Their IIED claims alleged that "Dr. Durrani's conduct as described [in the complaint] was intentional and reckless. It is outrageous and offends against the generally accepted standards of morality." Their lack-of-informed-consent claims alleged that "[t]he informed consent forms from Dr. Durrani * * * failed to fully cover all the information necessary and required for the procedures * * *. No one verbally informed Plaintiff of the information and risks required for informed consent * * *." Finally, Calligan's vicarious-liability claim alleged that "Dr. Durrani was performing within the scope of his employment with Children's Hospital during the care and treatment of Plaintiff. Defendant Children's Hospital is responsible for harm caused by acts of its employees for conduct that was within the scope of employment * * *."

{¶ 19} These claims were all asserted against a physician or hospital and "ar[ose] out of the medical diagnosis, care, or treatment of" the plaintiffs. They are therefore "medical claims" subject to the limitations period in the statute of repose. See Young at ¶ 23 (holding that "an allegation of lack of informed consent" in the context of a purported fraud claim is a "medical claim" under R.C. 2305.113(E) ).

{¶ 20} Conversely, plaintiffs' spoliation-of-evidence claims alleged that Durrani, Christ, and Children's "willfully altered, destroyed, delayed, hid, modified and/or spoiled Plaintiff's records, billing records, paperwork and related evidence * * * with knowledge that there was pending or probable litigation involving Plaintiff." These claims did not "arise[ ] out of the medical diagnosis, care, or treatment of" the plaintiffs, and therefore are not "medical claims."

{¶ 21} Having determined which of the plaintiffs' claims are medical claims, we now turn to the question of whether the statute of repose is constitutional. We have already held that it is. Young at ¶ 32. The Ohio Supreme Court has also held that the statute is constitutional. Ruther v. Kaiser , 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, syllabus; Antoon v. Cleveland Clinic Found. , 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 34-35.

{¶ 22} Plaintiffs urge us to revisit Young and hold that the statute of repose is unconstitutional without a fraud exception. We decline this invitation for two reasons. First, the Supreme Court has twice ruled that the statute of repose is constitutional as written, and, in Antoon , did so after we had decided Young. We are simply not at liberty to overrule the Supreme Court. Young at ¶ 29.

{¶ 23} Second, to support their argument, plaintiffs point us to other jurisdictions that have adopted fraud exceptions to their statutes of repose. However, in each of these jurisdictions, the exceptions have been added by the legislature, not the judiciary. "It is our duty to apply the statute as the General Assembly has drafted it; it is not our duty to rewrite it," even to cure a perceived omission. Doe v. Marlington Local School Dist. Bd. of Edn. , 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29 ; Schlueter v. Cleveland Bd. of Ed. , 12 Ohio Misc. 186, 199, 230 N.E.2d 364 (C.P.1960) ("[A statute's] undesirable consequences do not justify a departure from the terms of the act as written, and the courts may not supply a casus omissus however desirable it may be to supply the omitted provision.").

{¶ 24} Furthermore, the General Assembly has adopted fraud exceptions for other statutes of repose, e.g., R.C. 2305.131(C), but not for the statute of repose for medical claims. This demonstrates that the General Assembly has chosen not to create a fraud exception for medical claims. See Hulsmeyer v. Hospice of Southwest Ohio, Inc. , 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903, ¶ 26.

{¶ 25} In short, the statute of repose applies to bar Crissinger's and Calligan's medical claims, and the trial court erred in holding otherwise. See Young at ¶ 33.

The Remaining Appeals

{¶ 26} The remaining appeals present a threshold issue of justiciability that we must address: specifically, whether the appeals are moot. "Mootness is a question of justiciability, and '[j]urisdiction and justiciability are threshold considerations in every case, without exception.' " Saqr v. Naji , 1st Dist. Hamilton No. C-160850, 2017-Ohio-8142, 2017 WL 4538886, ¶ 20, quoting Barrow v. New Miami , 2016-Ohio-340, 58 N.E.3d 532, ¶ 12 (12th Dist.).

{¶ 27} The only issue in the remaining four appeals is whether the trial court erred in holding that the peer-review immunity statutes were unconstitutional. However, shortly after these appeals were filed, the plaintiffs filed notices in this court and in the trial court stating that they no longer intended to challenge the constitutionality of the peer-review immunity statutes. Furthermore, the trial court's October 21, 2016 order modified the general order to reflect the plaintiffs' decision to no longer challenge the statutes' constitutionality, so peer-review immunity is no longer an issue in these cases.

{¶ 28} Under these circumstances, there is no longer a live and active controversy between the parties, and these appeals are therefore moot.

Ardire v. Westlaw City Council , 8th Dist. Cuyahoga No. 99347, 2013-Ohio-3533, 2013 WL 4156712, ¶ 3 ("If events transpire post-judgment that make it impossible for an appellate court to grant any effectual relief, the appellate court has nothing to decide and the appeal is rendered moot."); In re Atty. Gen.'s Subpoena , 11th Dist. Geauga No. 2009-G-2916, 2010-Ohio-476, 2010 WL 529494, ¶ 11 (appeal mooted where appellee withdrew the subpoena that resulted in the trial court's denial of appellant's motion to quash). We therefore dismiss these appeals.

Conclusion

{¶ 29} In the appeals numbered C-150796, C-160034, C-160157, and C-160182, we sustain the appellants' assignments of error, reverse the trial court's judgment to the extent it held the statute of repose unconstitutional and to the extent that it denied the appellants' motions to dismiss the medical claims, and remand these causes for dismissal of the medical claims against the appellants and for further proceedings consistent with the law and this opinion. We dismiss the appeals numbered C-160053, C-160067, C-160087, and C-160113 as moot.

Judgment accordingly.

Mock, P.J., and Handwork, J., concur.

Peter M. Handwork, retired, from the Sixth Appellate District, sitting by assignment.


author: Gwin, J.,

text:
    STATE of Ohio, Plaintiff-Appellee v. Jessie WILSON, Defendant-Appellant
    No. 17CA31
    Court of Appeals of Ohio, Fifth District, Richland County.
    DATE OF JUDGMENT ENTRY: January 31, 2018
    JOSEPH SNYDER, Assistant Prosecutor, 38 South Park Street, Mansfield, OH 44902, For Plaintiff-Appellee
    JOHN O'DONNELL III, 10 West Newlon Place, Mansfield, OH 44902, For Defendant-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. William B. Hoffman, J.
   Gwin, J.,

{¶ 1} Appellant Jessie Wilson ["Wilson"] appeals his convictions and sentences after a jury trial in the Richland County Court of Common Pleas.

Facts and Procedural History

{¶ 2} In the months prior to September 1, 2016, officers of the Mansfield Police Department METRICH Enforcement Unit conducted surveillance on 321 and 329 West Sixth Street. The surveillance was initiated because of anonymous tips about drug activity at both locations. Ultimately, METRICH conducted two controlled buys with a confidential informant. During the first buy, the seller, Terry Hardin, was dropped off at 321 West Sixth while the confidential informant waited in the parking lot at the rear of the apartment building. Hardin was observed by the officers to walk over to 329 West Sixth Street, obtain drugs and return to the parking lot. The drugs were then exchanged with the confidential informant. During the second buy on August 25, 2016, the informant purchased the drugs inside 321 West Sixth Street. Wilson's vehicle, a red Chrysler Crossfire, was seen at 329 West Sixth Street on multiple occasions.

{¶ 3} On August 31, 2016, law enforcement officers obtained a search warrant from a Mansfield Municipal Court judge to search 329 West Sixth Street, Mansfield, Ohio. Wilson's neighbor, Edward Johnson, who lived at 319 West Sixth Street, identified Wilson to the police as living at 329 West Sixth Street. The morning of the raid, Mr. Johnson heard a knock and went to his front door. He saw Wilson enter the 321 West Sixth Street address. He had also previously seen Wilson walking his dog outside.

{¶ 4} When police executed the search warrant at 329 West Sixth Street they found a powdery substance out in the open, which later tested positive as .03 grams of cocaine. A digital scale and plastic baggies were also found. A baggie of marijuana, weighing 28.16 grams, and a baggie of heroin weighing 10.13 grams were found in a utility closet. A pill bottle with 68 Buspirone tablets, weighing 2.57 grams, was found on a mantle. Photographs, including Wilson's were seen on the mantel. When Wilson was arrested, he stated that he lived at 329 West Sixth Street. (1T. at 261).

{¶ 5} The jury found Wilson guilty of Possession of Heroin, over ten (10) grams and less than fifty (50) grams, a felony of the second degree; Possession of Cocaine, less than five (5) grams, a felony of the fifth degree; and Possession of Buspirone, with a prior drug conviction, a felony of the fifth degree.

{¶ 6} The trial court sentenced Wilson to an 8-year mandatory prison sentence on the possession of heroin charge, and twelve months each for the possession of cocaine and possession of Buspirone charges. All sentences were ordered to be served concurrently.

Assignments of Error

{¶ 7} Wilson raises three assignments of error,

{¶ 8} "I. DEFENDANT/APPELLANT [WAS] DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A MOTION TO SUPPRESS EVIDENCE.

{¶ 9} "II. DEFENDANT/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A DEMAND UNDER ORC § 2925.51 FOR THE CHEMIST TO TESTIFY AND FOR THE HEROIN TO BE AVAILABLE FOR AN INDEPENDENT EXPERT TO WEIGH THE HEROIN.

{¶ 10} "III. THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE."

I.

{¶ 11} In his first assignment of error, Wilson contends that he was denied the effective assistance of trial counsel. Specifically, Wilson argues that his trial counsel should have filed a motion to suppress the search warrant issued in his case.

STANDARD OF APPELLATE REVIEW.

{¶ 12} To obtain a reversal of a conviction on the basis of ineffective assistance of counsel, the defendant must prove (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). A defendant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699 ;

State v. Madrigal , 87 Ohio St.3d 378, 721 N.E.2d 52 (2000).

{¶ 13} Trial counsel's failure to file a suppression motion does not per se constitute ineffective assistance of counsel. State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) ; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, 2016 WL 530659, ¶ 56. Counsel can only be found ineffective for failing to file a motion to suppress if, based on the record, the motion would have been granted. State v. Lavelle , 5th Dist. No. 07 CA 130, 2008-Ohio-3119, 2008 WL 2571700, at ¶ 47 ; State v. Cheatam , 5th Dist. No. 06-CA-88, 2007-Ohio-3009, 2007 WL 1731619, at ¶ 86. The defendant must further show that there is a reasonable probability that the outcome would have been different if the motion had been granted or the defense pursued. See Kimmelman v. Morrison , 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986) ; see, also, State v. Santana , 90 Ohio St.3d 513, 739 N.E.2d 798 (2001), citing State v. Lott , 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

ISSUES FOR APPEAL

A. Whether there is a reasonable probability a motion to suppress the search warrant would have been granted.

{¶ 14} Wilson contends that the search warrant "could not corroborate the information that Defendant/Appellant lived at 329 West Sixth Street..." [Appellant's Brief at 6].

1). Standing to object to the search of 329 West Sixth Street.

{¶ 15} Only those whose rights were violated by the search itself can urge suppression of evidence obtained in violation of the Fourth Amendment. Standing is not achieved solely by a person's status as a defendant or by introduction of damaging evidence. Alderman v. United States , 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Consequently, before a court may review the reasonableness of police behavior, the defendant must be able to demonstrate that his Fourth Amendment right to privacy was violated.

{¶ 16} In Jones v. United States , 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the United States Supreme Court held that automatic standing applied to any person charged with an offense in which possession is an essential element, and that any person legitimately on the premises where a search takes place could challenge the lawfulness of the search.

{¶ 17} Automatic standing was eliminated in Rakas v. Illinois , 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In Rakas , the defendants were passengers in an automobile that had been lawfully stopped on reasonable suspicion but unlawfully searched. The search uncovered a sawed-off rifle under the passenger seat and a box of shells in a locked glove box, which helped link the defendants to a robbery. The defendants never asserted a property interest in the evidence but claimed standing because of their lawful presence as passengers in the vehicle.

{¶ 18} The United States Supreme Court held that a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights. Rakas, at 133-140, 99 S.Ct. 421, 58 L.Ed.2d 387. See, also , Brown v. United States , 411 U.S. 223, 229-230, 93 S.Ct. 1565, 1569-70, 36 L.Ed.2d 208 (1973) ; Alderman v. United States , 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969) ; Simmons v. United States , 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968). A defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. Rakas v. Illinois , 439 U.S. at 143, 149-152, 99 S.Ct. 421, (Powell, J., concurring); Combs v. United States , 408 U.S. 224, 227, 92 S.Ct. 2284, 2286, 33 L.Ed.2d 308 (1972) ; Mancusi v. DeForte , 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968).

{¶ 19} To the extent that Wilson argues that no corroborating evidence established that he lived at 329 West Sixth Street, he would not have had standing to challenge the search warrant issued and executed at that address. Thus, not filing a motion to suppress may have been a tactical decision by Wilson.

{¶ 20} A defendant has no constitutional right to determine trial tactics and strategy of counsel. State v. Cowans , 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999) ; State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 150 ; State v. Donkers, 170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557, ¶ 183 (11th Dist.). Rather, decisions about viable defenses are the exclusive domain of defense counsel after consulting with the defendant. Id. When there is no demonstration that counsel failed to research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing court defers to counsel's judgment in the matter. State v. Clayton , 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980), citing People v. Miller , 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841, 498 P.2d 1089 (1972) ; State v. Wiley , 10th Dist. No. 03AP-340, 2004-Ohio-1008, 2004 WL 396767 at ¶ 21.

{¶ 21} Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel. State v. Phillips , 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). Even if the wisdom of an approach is questionable, "debatable trial tactics" do not constitute ineffective assistance of counsel. Id."Poor tactics of experienced counsel, however, even with disastrous result, may hardly be considered lack of due process * * *." State v. Clayton , 62 Ohio St.2d 45, 48, 402 N.E.2d 1189 (1980) (quoting United States v. Denno, 313 F.2d 364 (2nd Cir. 1963), certiorari denied 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963).

B. Whether the affidavit in support of the search warrant contains sufficient probable cause upon which the reviewing court could issue the search warrant.

{¶ 22} Wilson contends that the affidavit contains references to anonymous tips without any indication concerning the veracity of the provider of the information.

{¶ 23} At the outset we note, the record before this Court contains neither the search warrant nor the affidavit in support of the search warrant. Accordingly, we generally presume the regularity of that proceeding and affirm. State ex rel. Hoag v. Lucas Cty. Bd. of Elections , 125 Ohio St.3d 49, 2010-Ohio-1629, 925 N.E.2d 984, ¶ 12, citing Christy v. Summit Cty. Bd. of Elections , 77 Ohio St.3d 35, 39, 671 N.E.2d 1 (1996) ; State ex rel. Duncan v. Portage Cty. Bd. of Elections , 115 Ohio St.3d 405, 2007-Ohio-5346, 875 N.E.2d 578, ¶ 17. Appellant has the responsibility of providing the reviewing court with a record of the facts, testimony, and evidentiary matters that are necessary to support the appellant's assignments of error. Wozniak v. Wozniak , 90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506 (9th Dist.1993) ; Volodkevich v. Volodkevich , 48 Ohio App.3d 313, 314, 549 N.E.2d 1237, 1238-1239 (9th Dist.1989). This principle is recognized in App.R. 9(B), which provides, in part, that '* * *the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record.* * *. "When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to the assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 199, 400 N.E.2d 384, 385 (1980). If a partial record does not conclusively support the trial court's decision, it is presumed that the omitted portion provides the necessary support. Wozniak, 90 Ohio App.3d at 409, 629 N.E.2d at 506 ; In re Adoption of Foster (1985), 22 Ohio App.3d 129, 131, 489 N.E.2d 1070, 1072-1073 (3rd Dist.1985), overruled on other grounds, In re Adoption of Sunderhaus, 63 Ohio St.3d 127, 585 N.E.2d 418 (1991).

{¶ 24} Also, in State v. Hooks , 92 Ohio St.3d 83, 748 N.E.2d 528 (2001), the Supreme Court noted, "a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail , 54 Ohio St.2d 402, 377 N.E.2d 500 (1978). It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty , 4th Dist. Pickaway No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards , 120 Ohio App. 55, 59, 201 N.E.2d 227 (10th Dist. 1963).

{¶ 25} In the alternative, we would in the interest of justice, note that the record does contain evidence that the premises were under surveillance by law enforcement and two controlled buys were conducted using a confidential informant. Law enforcement officers observed these buys.

{¶ 26} In reviewing the affidavit in this case, we are guided by the following instruction by the Ohio Supreme Court: " "[R]eviewing courts may not substitute their own judgment for that of the issuing magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which the reviewing court would issue the search warrant. On the contrary, reviewing courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant." State v. George, 45 Ohio St.3d 325, 330, 544 N.E.2d 640 (1989), paragraph two of the syllabus; Illinois v. Gates , 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), internal citations omitted. " '[T]he duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for * * * conclud[ing]' that probable cause existed." State v. George , supra at 329, 544 N.E.2d 640, citing Gates , 462 U.S. at 238-239, 103 S.Ct. 2317. See also , State v. Norman , 5th Dist. Guernsey No. 2010-CA-21, 2011-Ohio-568, 2011 WL 415000 at ¶ 33.

{¶ 27} In assessing whether a party has met its burden of proof, the Ohio Supreme Court has stated, "[t]he degree of proof required is determined by the impression which the testimony of the witnesses makes upon the trier of facts, and the character of the testimony itself. Credibility, intelligence, freedom from bias or prejudice, opportunity to be informed, the disposition to tell the truth or otherwise, and the probability or improbability of the statements made, are all tests of testimonial value. Cross v. Ledford , 161 Ohio St. 469, 477, 120 N.E.2d 118, 123 (1954). See also, Rice v. City of Cleveland , 144 Ohio St. 299, 58 N.E.2d 768 (1944). "In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, '[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, quoting Illinois v. Gates , 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527. See also , State v. Norman , supra , 2011-Ohio-568, 2011 WL 415000, ¶ 38.

{¶ 28} Moreover, evidence obtained by a law enforcement officer acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause will not be barred by the application of the exclusionary rule. See George , 45 Ohio St.3d 325, 544 N.E.2d 640 at paragraph three of the syllabus, citing United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Finally, an officer executing a valid warrant may seize an item not described in the warrant if "it was 'immediately apparent' that the item was incriminating." State v. Waddy , supra 63 Ohio St.3d at 442, 588 N.E.2d 819, citing Coolidge v. New Hampshire , 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). See also Horton v. California , 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

{¶ 29} In the case at bar, the evidence discloses that in reliance upon the fact that unidentified citizen informants reported drug activity at the location the police conducted surveillance and two controlled buys from the premises. This would be sufficient probable cause upon which the reviewing court would issue the search warrant.

{¶ 30} As there is not a reasonable probability that a motion to suppress the search warrant would have been granted, trial counsel was not ineffective in failing to file the motion to suppress.

{¶ 31} Wilson's first assignment of error is overruled.

II.

{¶ 32} In his second assignment of error, Wilson argues he was denied effective assistance of counsel because counsel: 1). did not demand the chemist who weighed and analyzed the drugs testify at trial; 2). did not demand the heroin to be made available for independent testing and 3). did not demand an independent expert to weight the heroin.

STANDARD OF APPELLATE REVIEW.

{¶ 33} To obtain a reversal of a conviction on the basis of ineffective assistance of counsel, the defendant must prove (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). A defendant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699 ; State v. Madrigal , 87 Ohio St.3d 378, 721 N.E.2d 52 (2000).

ISSUES FOR APPEAL

A. Whether Wilson was prejudiced by his attorney's failure to have the expert testify or to have the drugs re-weighed by an independent expert.

{¶ 34} In the case at bar, Wilson was charged with possession of more than 10 grams but less than 50 grams of heroin in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(6)(d). The laboratory report submitted at trial indicates that 10.03 grams of heroin were recovered from the residence. (1T. at 256; State's Exhibit 33).

{¶ 35} Wilson agrees that he cannot demonstrate that live testimony of the chemist who weighed and analyzed the heroin would have changed the outcome of the jury verdict. Wilson contends, however, that given how little the weight of the heroin is over 10 grams trial counsel should have requested an independent analysis at least concerning the weight of the drug. [Appellant Brief at 10].

{¶ 36} Debatable trial tactics do not establish ineffective assistance of counsel. State v. Hoffner , 102 Ohio St.3d 358, 365, 2004-Ohio-3430, 811 N.E.2d 48 (2004), ¶ 45. Trial counsel's failure to request an expert is a "debatable trial tactic," and does not amount to ineffective assistance of counsel. See State v. Thompson (1987), 33 Ohio St.3d 1, 9, 514 N.E.2d 407 (trial counsel's failure to obtain a forensic pathologist to "rebut" issue of rape was not ineffective assistance of counsel); State v. Foust , 105 Ohio St.3d 137, 153-154, 2004-Ohio-7006, 823 N.E.2d 836, ¶¶ 97-99 (trial counsel's failure to request funds for a DNA expert, an alcohol and substance-abuse expert, a fingerprint expert, and an arson expert did not amount to ineffective assistance of counsel because appellant's need for experts was "highly speculative" and counsel's choice "to rely on cross-examination" of prosecution's expert was a "legitimate tactical decision"); State v. Yarger , 6th Dist. No. H-97-014, 1998 WL 230648 (May 1, 1998) (trial counsel's failure to hire an expert medical doctor to rebut the state's expert witness was not ineffective assistance of trial counsel); State v. Rutter , 4th Dist. No. 02CA17, 2003-Ohio-373, 2003 WL 187460, ¶ 19, 28 (trial counsel's failure to hire an accident reconstructionist did not amount to ineffective assistance of counsel).

{¶ 37} In the case at bar, Wilson's argument that re-weighing the heroin would have resulted in a finding of less than 10 grams is entirely speculative. Here, the record reveals that trial counsel's decision to rely on cross-examination appears to have been a legitimate "tactical decision," especially in light of Wilson's defense at trial that the drugs were not his and there was no corroborating evidence to prove he even lived at the place where the drugs were recovered. See, State v. Foust , 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 97 (2004).

{¶ 38} Accordingly, the failure to demand the chemist testify at trial and to demand an independent expert reweigh the drugs cannot be considered ineffective assistance of counsel under the facts of this case.

{¶ 39} Wilson's second assignment of error is overruled.

III.

{¶ 40} In his third assignment of error, Wilson maintains that the trial court erred in imposing the maximum sentence for possession of heroin of more than 10 grams but less than 50 grams of heroin in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(6)(d).

{¶ 41} R.C. 2925.11(C)(6) provides in pertinent part,

(d) If the amount of the drug involved equals or exceeds one hundred unit doses but is less than five hundred unit doses or equals or exceeds ten grams but is less than fifty grams, possession of heroin is a felony of the second degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree. (Emphasis added).

{¶ 42} Wilson was sentenced to the maximum sentence of eight years. R.C. 2929.14(A)(2).

STANDARD OF APPELLATE REVIEW.

{¶ 43} In accordance with R.C. 2953.08(A)(1), Wilson is entitled to appeal as of right the maximum sentence imposed on his conviction.

{¶ 44} 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 ; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, 2015 WL 5722820, ¶ 31. 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.

{¶ 45} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court's findings under relevant statutes, or (2) the sentence is otherwise contrary to law.

{¶ 46} 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 to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). "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.

R.C. 2929.13(B).

{¶ 47} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony. This section does not apply to Wilson's appeal.

R.C. 2929.13(D).

{¶ 48} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or second degree, for a felony drug offense that is a violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison term is specified as being applicable, and for a violation of division (A)(4) or (B) of section 2907.05 of the Revised Code for which a presumption in favor of a prison term is specified as being applicable.

{¶ 49} R.C. 2929.13(D) (1) provides that when sentencing for a first or second-degree felony "it is presumed that a prison sentence is necessary in order to comply with the purposes and principles of sentencing." Nonetheless, R.C. 2929.13(D)(2) provides that "[n]otwithstanding the presumption * * * the sentencing court may impose a community control sanction," (emphasis added), but only if the sentencing court finds that a community control sanction would (1) adequately punish the offender and protect the public from future crime, and (2) not demean the seriousness of the offense because the statutory less serious sentencing factors outweigh the more serious factors.

{¶ 50} However, in R.C. 2925.11(C)(6)(d), the legislature has mandated a prison sentence be imposed under the facts established at trial in Wilson's case. Thus, the trial court was not required to make any findings before imposing a mandatory prison sentence from within the range of prison sentences specified for a felony of the second degree.

R.C. 2929.14.

{¶ 51} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court can impose upon a defendant under specified circumstances. Wilson was not given an additional prison sentence.

R.C. 2929.14(C).

{¶ 52} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. The trial court imposed concurrent sentences in Wilson's case.

R.C. 2929.20.

{¶ 53} R.C. 2929.20 (I) is inapplicable, as Wilson was not applying to the court for judicial release.

R.C. 2929.11 and R.C. 2929.12.

{¶ 54} The Marcum court further noted,

We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.

146 Ohio St.3d 516 at ¶23, 2016-Ohio-1002, 59 N.E.3d 1231 (emphasis added).

{¶ 55} R.C. 2929.11(A) governs the purposes and principles of felony sentencing and provides that a sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing, which are (1) to protect the public from future crime by the offender and others, and (2) to punish the offender using the minimum sanctions that the court determines will accomplish those purposes. Further, the sentence imposed shall be "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes by similar offenders." R.C. 2929.11(B).

{¶ 56} R.C. 2929.12 sets forth the seriousness and recidivism factors for the sentencing court to consider in determining the most effective way to comply with the purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a non-exhaustive list of factors a trial court must consider when determining the seriousness of the offense and the likelihood that the offender will commit future offenses.

{¶ 57} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the court discussed the effect of the State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court severed the judicial-fact-finding portions of R.C. 2929.14, holding that "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100, See also, State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306 ; State v. Firouzmandi , 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175.

{¶ 58} "Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to review under 2953.08(G)(2)." Kalish at ¶ 12. However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C. 2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶ 13, see also State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1 ; State v. Firouzmandisupra at ¶ 29.

{¶ 59} Thus, post- Foster , "there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to 'consider' the statutory factors." Foster at ¶ 42. State v. Rutter , 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061, 2006 WL 2257068 ; State v. Delong , 4th Dist. No. 05CA815, 2006-Ohio-2753, 2006 WL 1495258 at ¶ 7-8. Therefore, post- Foster, trial courts are still required to consider the general guidance factors in their sentencing decisions.

{¶ 60} There is no requirement in R.C. 2929.12 that the trial court states on the record that it has considered the statutory criteria concerning seriousness and recidivism or even discussed them. State v. Polick , 101 Ohio App.3d 428, 431, 655 N.E.2d 820 (4th Dist. 1995) ; State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, 2006 WL 771790, at ¶ 60 (nothing in R.C. 2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its findings), citing State v. Cyrus , 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992) ; State v. Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, 2005 WL 3254572, ¶ 10 (trial court was not required to address each R.C. 2929.12 factor individually and make a finding as to whether it was applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, 2006 WL 726271, ¶ 19 ("... R.C. 2929.12 does not require specific language or specific findings on the record in order to show that the trial court considered the applicable seriousness and recidivism factors"). (Citations omitted).

{¶ 61} In the case at bar, the trial court made the following findings during Wilson's sentencing hearing,

THE COURT: All right. Coming to the factors that I am required to weigh under Ohio Revised Code 2929.12, has factors that I am required to consider in every case in sentencing which make the conduct more serious or less serious, which make recidivism, a repeat crime, more likely or less likely. In terms of factors which make the conduct more serious, the defendant acted as a part of organized criminal drug activity in the trade. That is the factor I see more serious. I don't see any that make it less serious.
In terms of recidivism, the factors that I see that make recidivism more likely is Mr. Wilson has a history of criminal convictions and including specifically a drug trafficking conviction and also possession of weapons, carrying a concealed weapon. Drugs and guns don't mix.
Also, I am seeing that he satisfies the factor of not responding favorably to sanctions imposed in the past for various types of drug crimes, including drug trafficking crimes.
And then, finally, he shows no genuine remorse. He has not conceded at all he is remorseful about what he did.
Given all of those factors and given the large quantity of heroin and the problem that it is in this community, I believe the appropriate sentence is 8 years of actual incarceration on Count 1; 12 months on each of the other counts, and they are concurrent with Count 1. So the sentence is 8 years There is a mandatory 3 years of Post Release Control.

2T. at 82-84. Accordingly, the trial court had considered the purposes and principles of sentencing [ R.C. 2929.11 ] as well as the factors that the court must consider when determining an appropriate sentence. [ R.C. 2929.12 ]. The trial court has no obligation to state reasons to support its findings. Nor is it 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.

{¶ 62} Wilson was sentenced for a felony of the second degree. The sentencing range for a second-degree felony is two, three, four, five, six, seven, or eight years. R.C. 2929.14(A)(2). Wilson was given a sentence of eight years, which is within the statutory range. Accordingly, the sentence is not contrary to law.

{¶ 63} Upon review, we find that the trial court's sentencing on the charges complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and advised Wilson regarding post release control. Upon a thorough review, we find the record clearly and convincing supports the sentence imposed by the trial court.

{¶ 64} While Wilson may disagree with the weight given to these factors by the trial judge, Wilson's sentence was within the applicable statutory range for a felony of the second degree and therefore, we have no basis for concluding that it is contrary to law.

{¶ 65} Wilson's third assignment of error is overruled.

{¶ 66} The judgment of the Richland County Court of Common Pleas is affirmed.

Wise, John, P.J., and Hoffman, J., concur