Court of Appeals of Ohio, Second District, Champaign
Criminal Appeal from Common Pleas Court, Nos. 2017-CR-286,
ADAM USMANI, Attorney for Plaintiff-Appellee.
KRISTIN L. ARNOLD, Attorney for Defendant-Appellant.
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.
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. 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
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.
"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
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
(c) The offender's history of criminal conduct
demonstrates that consecutive sentences are necessary to
protect the public ...