Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Nos. CR-16-607546-A and CR-16-608489-A
ATTORNEY FOR APPELLANT Erin R. Flanagan Erin R. Flanagan,
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Michael Lisk Assistant County Prosecutor
BEFORE: Kilbane, P.J., Boyle, J., and Jones, J.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, P.J.
Defendant-appellant, Kevin A. Carswell
("Carswell"), appeals the trial court's
imposition of consecutive sentences for drug trafficking and
resisting arrest. For the reasons set forth below, we affirm.
In April 2016, Euclid police conducted a controlled buy of
heroin from Carswell that resulted in a nine-count indictment
against him. In Cuyahoga C.P. No. CR-16-608489-A, he was
charged with six counts of drug trafficking and three counts
of drug possession. Carswell was also charged in Cuyahoga
C.P. No. CR-16-607546-A, after a car he was a passenger in
caused a motor vehicle accident while fleeing from the
Richmond Heights police in June 2016. The driver of the car
and Carswell fled the scene, but only Carswell was
apprehended. Police searched the vehicle and found Percocet,
a handgun, and a digital scale. Carswell was charged with one
count of trafficking, one count of drug possession, one count
of resisting arrest, and one count of possessing criminal
Carswell later pled guilty to two counts of drug trafficking
in CR-16-608489-A. In CR-16-607546-A, he pled guilty to one
count of drug trafficking and one count of resisting arrest.
In CR-16-608489-A, the trial court sentenced Carswell to 12
months on each count of drug trafficking, to run
concurrently. In CR-16-607546-A, the trial court sentenced
him to 12 months on the one count of drug trafficking and 90
days for resisting arrest. The trial court then ordered the
12-month sentences in each case to run consecutively to each
It is from this order that Carswell now appeals, raising a
single assignment of error for our review:
trial court's sentence is contrary to law.
Carswell argues that the trial court failed to properly
consider R.C. 2929.14(C)(4) in imposing consecutive
We review consecutive sentences using the standard set forth
in R.C. 2953.08. State v. Wells, 8th Dist. Cuyahoga
Nos. 99305, 99306, and 99307, 2013-Ohio-3809, ¶ 11,
citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d
453, ¶ 10, (8th Dist). R.C. 2953.08(G)(2) provides two
grounds for an appellate court to overturn the imposition of
consecutive sentences: (1) the sentence is "otherwise
contrary to law"; or (2) the appellate court, upon its
review, clearly and convincingly finds that "the record
does not support the sentencing court's findings"
under R.C. 2929.14(C)(4). Wells at ¶ 12.
The presumption under Ohio law is that prison terms are to be
served concurrently; therefore, a trial court may only impose
consecutive sentences after making three distinct findings.
R.C. 2929.14; State v. Taylor, 8th Dist. Cuyahoga
No. 100315, 2014-Ohio-3134, ¶ 56. Specifically, the
trial court must find that consecutive service for
convictions of multiple offenses is "necessary to
protect the public from future crime or to punish the
offender." It must also find that the consecutive
sentences are "not disproportionate to the seriousness
of the offender's conduct and to the danger the offender
poses to the public." Finally, the trial court must find
that one of the three statutory factors set forth in R.C.