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State v. Carswell

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 22, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KEVIN A. CARSWELL DEFENDANT-APPELLANT

         Criminal 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, Esq. Ltd.

          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

          MARY EILEEN KILBANE, P.J.

         {¶1} 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.

         {¶2} 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 tools.

         {¶3} 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 other.

         {¶4} It is from this order that Carswell now appeals, raising a single assignment of error for our review:

         Assignment of Error

         The trial court's sentence is contrary to law.

         {¶5} Carswell argues that the trial court failed to properly consider R.C. 2929.14(C)(4) in imposing consecutive sentences.

         {¶6} 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.

         {¶7} 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, ΒΆ 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. ...


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