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State v. Fultz

Court of Appeals of Ohio, Second District, Champaign

June 28, 2019

STATE OF OHIO Plaintiff-Appellee
BRYAN KARL FULTZ Defendant-Appellant

          Criminal Appeal from Common Pleas Court, Nos. 2017-CR-286, 2018-CR-100.

          SAMUEL ADAM USMANI, Attorney for Plaintiff-Appellee.

          KRISTIN L. ARNOLD, Attorney for Defendant-Appellant.


          FROELICH, J.

         {¶ 1} In Champaign C.P. No. 2018-CR-100, Bryan Karl Fultz pled guilty in the Champaign County Court of Common Pleas to six drug offenses, for which he received consecutive sentences totaling 85 months in prison and was ordered to pay a mandatory fine of $5, 000 and court costs. The trial court also revoked Fultz's community control in Champaign C.P. No. 2017-CR-286 and terminated Fultz's post-release control in a third case, and the court imposed additional consecutive sentences. For the following reasons, the judgment in Case No. 2018-CR-100 will be affirmed in part, reversed in part, and remanded for further proceedings. The judgment in Case No. 2017-CR-286 will be affirmed.

         I. Facts and Procedural History

         {¶ 2} A 17-year-old female required emergency medical treatment after taking some L.S.D. that Fultz had sold. In May 2018, after an investigation by law enforcement, Fultz was indicted in Case No. 2018-CR-100 on 23 drug-related offenses.[1] He later pled guilty to six counts: trafficking in marijuana, a fifth-degree felony; possession of L.S.D., a third-degree felony; aggravated possession of drugs, a fifth-degree felony; aggravated trafficking in drugs, a fourth-degree felony; and two counts of trafficking in L.S.D., both fifth-degree felonies. The remaining charges were dismissed, and the court ordered a presentence investigation.

         {¶ 3} At sentencing, the State asked the court to impose prison sentences totaling seven years in Case No. 2018-CR-100, to revoke Fultz's community control in Case No. 2017-CR-286 and impose 18 months in prison, and to terminate Fultz's post-release control in another case (Champaign C.P. No. 2012-CR-120) and impose a prison term of 1, 095 days (three years). Defense counsel acknowledged that Fultz had made "immature decisions" but asserted that "there is a * * * cry from [Fultz]" and that Fultz's step-mother had expressed a willingness to help him. Defense counsel requested community control, although he recognized that community control was "a tough thing to ask for." Speaking on his own behalf, Fultz acknowledged that he "deserve[d] some kind of punishment," but he asked for help with his drug problem.

         {¶ 4} In Case No. 2018-CR-100, the trial court imposed a prison sentence for each offense and ordered Fultz to serve all but one of the sentences consecutively, for a total of 85 months in prison; the court also imposed a mandatory fine of $5, 000, and ordered him to pay court costs. The trial court also revoked Fultz's community control in Case No. 2017-CR-286 and ordered him to serve 18 months in prison, to be served consecutively to the sentence in Case No. 2018-CR-100. In addition, the trial court terminated Fultz's post-release control in Case No. 2012-CR-120 and ordered him to serve 1, 351 days consecutively to the sentences imposed in the other cases. The total sentence in all cases was approximately 12 years and 3 months in prison. The trial court filed a judgment entry that addressed both Case Nos. 2017-CR-286 and 2018-CR-100.

         {¶ 5} Fultz appeals from the trial court's judgments, raising two assignments of error. We will address them in reverse order.

         II. "Excessive" and Consecutive Sentences

         {¶ 6} In his second assignment of error, Fultz claims that the trial court "erred when it imposed excessive and consecutive sentences, contrary to law, against [him]."

         {¶ 7} In reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it "clearly and convincingly" finds either (1) that the record does not support certain specified findings or (2) that the sentence imposed is contrary to law.

         {¶ 8} In determining the sentence for an offense, the trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences. State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consider the statutory criteria that apply to every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

         {¶ 9} In general, it is presumed that prison terms will be served concurrently. R.C. 2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16, ¶ 23 ("judicial fact-finding is once again required to overcome the statutory presumption in favor of concurrent sentences"). However, after determining the sentence for a particular crime, a sentencing judge has discretion to order an offender to serve individual counts of a sentence consecutively to each other or to sentences imposed by other courts. State v. Moore, 2d Dist. Clark No. 2016-CA-45, 2018-Ohio-2111, ¶ 23.

         {¶ 10} To impose consecutive sentences, a trial court must make three findings under R.C. 2929.14(C) that overcome the presumption. Bonnell at ¶ 37. R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if it finds that (1) consecutive sentencing is necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and (3) any of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public ...

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