State v. Stodgel

[Cite as State v. Stodgel, 2024-Ohio-5182.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                         ROSS COUNTY


STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        : CASE NO. 23CA15

        v.                                         :

BRANDON C. STODGEL,                                : DECISION AND JUDGMENT ENTRY

        Defendant-Appellant.                       :

_________________________________________________________________

                                              APPEARANCES:

Peter Galyardt, Assistant State Public Defender, Columbus, Ohio,
for appellant1.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C.
Wells, Assistant Prosecuting Attorney, Chillicothe, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:10-23-24
ABELE, J.

        {¶1}     This is an appeal from a Ross County Common Pleas Court

judgment of conviction and sentence.                    Brandon Stodgel, defendant

below and appellant herein, assigns two errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “BRANDON STODGEL’S TRIAL COUNSEL RENDERED
                 INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION
                 OF HIS CONSTITUTIONAL RIGHTS. FOURTH, SIXTH,

        1
        Different counsel represented appellant during the trial
court proceedings.
                                                                       2
ROSS, 23CA15

            AND FOURTEENTH AMENDMENTS, UNITED STATES
            CONSTITUTION; ARTICLE I, SECTIONS 10, 14, AND
            16, OHIO CONSTITUTION; STRICKLAND V.
            WASHINGTON, 466 U.S. 668, 104 S.CT. 2052, 80
            L.ED.2D 674 (1984). TRIAL TR. 97-101, 103-105,
            109-115, 276-278.”


            SECOND ASSIGNMENT OF ERROR:

            “THE TRIAL COURT ERRED WHEN IT SENTENCED
            BRANDON STODGEL TO A CONSECUTIVE SENTENCE THAT
            THE RECORD CLEARLY AND CONVINCINGLY DOES NOT
            SUPPORT. R.C. 2929.14(C)(4); R.C. 2953.08.
            MAY 22, 2023 JUDGMENT ENTRY OF SENTENCE.”


     {¶2}   In March 2022, a Ross County Grand Jury returned an

indictment that charged appellant with (1) one count of aggravated

robbery in violation of R.C. 2911.01, a first-degree felony, with a

repeat-violent-offender specification as defined in R.C. 2929.01

and a firearm specification, (2) one count of aggravated robbery in

violation of R.C. 2911.01, a first-degree felony, with a repeat-

violent-offender specification as defined in R.C. 2929.01 and a

firearm specification, (3) one count of burglary in violation of

R.C. 2911.12, a third-degree felony, and (4) one count of having

weapons while under disability in violation of R.C. 2923.13, a

third-degree felony.    Appellant entered not guilty pleas.

     {¶3}   At trial, Ross County Sheriff’s Deputy Benjamin Roderick

testified that at approximately 4:30 p.m. on February 22, 2022,

dispatch notified him of a “burglary in progress” with two suspects
                                                                        3
ROSS, 23CA15

and shots fired.    Roderick arrived at the scene at 4:38 p.m. and

observed several people standing at the end of the driveway.

Roderick also observed a red and white Ford F 150 pickup truck in

the front yard with muddy tracks behind it and “several shotguns

and rifles and other miscellaneous items in the front.”

    {¶4}   Deputy Roderick spoke with Shane Morris, who yelled from

the house next door that “two individuals had run off into the

woods.”    After he attempted to search the woods, Roderick called

for a canine and aviation unit.     As officers prepared to deploy the

canine, a witness informed Roderick of an orange Honda Element down

the street that “appeared to be picking up two people that had

walked out of the wood line.”     Roderick observed two individuals

enter the Honda and “tak[e] off.”     After a slow-speed chase, the

Honda stopped and officers ordered the five occupants to exit.

Caitlynn Ratliff appeared “disheveled and dirty as if she had just

been walking through the woods, briars, mud on her pants and

shoes,” and appellant looked the same and had “mud on his boots and

. . . pants.”

    {¶5}   Michael LeMaster owns the home in question, but also

lived at another residence with his girlfriend.     LeMaster stopped

at the home “about once a day and get my mail or every other day,”

and maintained the utilities.     After Shane Morris called LeMaster,
                                                                        4
ROSS, 23CA15

he drove to the scene and met with Morris and the sheriff’s

department.     LeMaster noticed the “window was broke out.”     The

suspects apparently entered the home through a broken window in the

garage (no door in the garage connected to the house).     “They broke

the gun case, the glass out of the gun case and stuff.”        The

burglars removed the drawer from the nightstand.     LeMaster observed

that guns, ammunition, coins, knives, and jewelry were also

missing.    Outside, “they took a bicycle and motorcycle out of the

garage and put it out in the back.”     In addition, LeMaster noticed

the red and white pickup truck stuck in the front yard and looked

inside the cab, where he saw “everything you got in these

pictures,” meaning the items stolen from his home.

     {¶6}   LeMaster stated that he last visited the property “a day

or two before,” and that Caitlyn Ratliff, “the mother of

[LeMaster’s] grandkids,” had previously visited the home.

LeMaster, however, did not permit Ratliff or anyone else to enter

his home or remove anything.

     {¶7}   On cross-examination, counsel asked LeMaster if he used

this home for “storage” of personal property, to which LeMaster

replied, “No.     All my furniture and stuff is still in there.”

LeMaster agreed that the property was “unoccupied,” but added that

he kept clothes there.    LeMaster also acknowledged that Ratliff
                                                                     5
ROSS, 23CA15

would have known that no one resided at the property.    LeMaster

testified that when he visits the property, he “might be there two

or three hours, four hours,” and he could stay if he chose to.

     {¶8}   Ross County Sheriff’s Detective Brenton Davidson

testified that Ross County Sheriff’s Captain Stanley Addy

instructed him to investigate the incident.    When Davidson arrived,

he observed officers gathered around an orange Honda Element.

Davidson inventoried the Element while Addy photographed the

contents, including a firearm.    Davidson then drove to the

residence and photographed (1) the F-150 pickup truck stuck in the

mud in the front yard, (2) the residence, (3) the residence’s front

porch, (4) 12-gauge shotgun shells found in the gravel driveway

next to a package of wadding for muzzle loaders, (5) tire marks in

the front yard, (6) a gate “broken to gain entry to the back yard”,

(7) a cell phone Davidson found in “the back yard portion of the

residence,” (8) the truck’s interior, (9) “some trash bags that

were located inside the truck containing various items,” (10) some

items from the trash bag in the truck, (11) commemorative quarter

collection in one trash bag, (12) gun barrels, (13) shotgun shells

that came from a trash bag, (14) a firearm, (15) a broken window in

the attached garage that led to the kitchen, and (16) items on the

kitchen counter “that had been pushed off or moved.”    Davidson
                                                                     6
ROSS, 23CA15

inventoried the F-150 pickup truck and transported the evidence to

the station.    Davidson also explained that when he found a cell

phone in the driveway, he clicked the home button to determine the

cell phone’s owner and discovered it belonged to Shane Morris.

     {¶9}   Shane Morris testified that as he drove to the scrap

metal yard, he passed Mike LeMaster’s home and noticed “a strange

vehicle sitting in my buddy’s driveway.”    Morris described it as “a

white and orange Ford F-150.    It had been beat up, windows broke

out of it.”    Morris called LeMaster to report this and continued to

the scrap yard.    On his return, he again noticed the vehicle, so he

blocked it and “observed two people coming out of [the home]”

carrying “trash bags with stuff in it * * * so I knew they were

there robbing his house.”

     {¶10} Morris tried to call 911 but could not connect, so he

took photos of the truck and license plate, and “then I observed

Mr. Stodgel get in the truck and then he rammed my vehicle and

tried to get around it and ... then he got stuck in the yard.”

Morris then exited his vehicle and appellant:

     got out with a gun and I’m sitting there taking video of
     him, he points a gun at my head and says give me your phone
     so I’m like okay. I give him my phone. Then he jumps into
     my Tahoe and I said man, you’re not taking my vehicle. He
     said okay, you get in it and push me out. He wanted me to
     push him out of the yard onto the road and I said okay.
     So when I got into my vehicle, I just hurried up and backed
     out of the driveway and took off and when I took off, he
                                                                        7
ROSS, 23CA15

     fired two shots at me across the road.


     {¶11} As Morris left the scene, appellant stood in the yard and

Caitlynn Ratliff sat in the truck.     Morris said that “was the last

time I had saw them until they come out of the woods.”     Morris then

drove to a friend’s home and asked his wife to call 911.     When

Morris returned to speak with law enforcement, he observed two

people “come out of the woods and get in a car and I said right

there they are and ... the state highway patrolman took off after

them.”

     {¶12} Captain Stanley Addy testified that he was training

Brenton Davidson as a new detective when dispatch summoned.      At the

traffic stop of the orange Honda Element, Addy and Davidson

searched the Element with owner Leona Hickman’s consent.     Addy

found loose coins, a Honda 4-Wheeler key, knives, jewelry, a

jewelry box, and a brown jacket with rolled up coins and a women’s

watch.   Addy also found two 9 mm live cartridge shells on the

floorboard and observed the butt of what appeared to be a firearm

sticking out of the hatchback.   Addy described the firearm as an

“intel firearms fire star plus.”     Addy found two “loose rounds” in

the vehicle’s cabin and the magazine contained eight rounds.

LeMaster came to the scene and “identified all the items on the

seat [of the Element] as his from being out of his residence but he
                                                                        8
ROSS, 23CA15

claimed that this firearm was not his out of his residence.”

     {¶13} Captain Addy also spoke with appellant, who advised Addy

that he had “hung himself.     He did it this time.”   Appellant

repeatedly stated that Steven, Leona, and Alexa had “nothing to do

with it” and were “just giving him a ride.”     Addy told appellant

that Ratliff blamed him for entering the house.    Appellant also

“admitted that the gun located in the back of Leona’s vehicle was

his.”   Addy obtained appellant’s DNA sample and inquired about the

cell phone Detective Davidson found at the residence.      Initially,

appellant stated that the phone in the Element belonged to him, but

“was out of minutes,” so he had another phone.     However, the phone

Davidson found in the yard at the residence included a screen-saver

photo of Mr. Morris and his family.     Addy also noted that appellant

and Ratliff “had mud on them.    They appeared to be possibly going

through woods or laying in the dirt.”     Addy explained heavy rains

had created significant mud.     Addy also photographed Morris’s

vehicle and trailer and helped Davidson with evidence at the scene

of the burglary.

     {¶14} Approximately six days later, Captain Addy and Detective

Davidson visited the jail at appellant’s request.      During this

second interview

     Mr. Stodgel advised me at this point         that he wasn’t
     completely honest with me the night of.      He wanted to be
                                                                      9
ROSS, 23CA15

     honest with me now. He was claiming that he sat in the
     truck the whole time until Caitlynn had - let me back up.
     He advised he was with a girl named Chloe earlier that day,
     dropped her off and Caitlynn needed a ride to her baby’s
     grandpa’s to pick some stuff up. They were supposed to
     meet a Terry LeMaster and she was supposed to get some
     items. He advised he took her there. He sat in the truck
     and she goes out and goes around to the rear of the
     residence and was gone forever, comes walking back to the
     truck carrying a bag or bags. I can’t remember if he said
     bag or bags - - one of them busted or ripped and she dropped
     some items and he claimed he got out to help her pick the
     items up and noticed some was shotgun shells or something
     to that effect, I’m just going off memory here. And he’s
     helping pick these items up to put in the truck, she’s
     going back to the side of the house to get more items and
     bringing back when an SUV . . .pulled in behind him, and
     Caitlynn was hollering we got to go, we got to go. He said
     he panicked, jumps in the truck, slips the clutch, hits it
     when Caitlynn is telling him to drive through the yard so
     he drives - - pulls into the yard, gets his truck stuck.
     He gets out to try to talk with the guy . . . who is
     hollering at him that they’re going to - - he’s calling
     the Sheriff on him and they take off running and he hears
     two shots as they run away, him and Caitlynn.


     {¶15} Captain Addy added that appellant also told him he “did

not have a gun.”   Addy, however, stated, “that’s not what you told

me on the night of the stop,” and explained that appellant asked

him to play the recording, “so I played my recording of him

admitting the gun from the traffic stop located in the Element was

his and he, at that point, said I shouldn’t have told you that and

our interview was over.”   Addy explained that, even though

appellant gave him a voluntary DNA sample at the scene, Addy did

not send the sample along with the firearm found in the Element for
                                                                     10
ROSS, 23CA15

testing because appellant admitted at the scene that he owned the

weapon.   Addy also explained that officers did not fingerprint the

residence because Ratliff had been in the house prior to the

incident, and witnesses observed them both “packing stuff from the

rear of the house out.”   In addition, LeMaster told officers that

many of the stolen items belonged to his deceased wife, and Addy

described LeMaster as “very distraught.”   Addy explained, “I didn’t

feel the need to go in there and defile or ruin any more of Mr.

LeMaster’s deceased wife’s property by ruining anything with black

powder dust.”   In addition, Ross County Sheriff’s Evidence and

Property Technician Thomas Hamm testified that he test-fired the

semi-automatic weapon and found it fully operational.

    {¶16} At the close of appellee’s case, appellant made a Crim.R.

29 motion for judgment of acquittal and argued that the burglary

charge should be dismissed because the structure’s owner testified

it was unoccupied.   In addition, appellant requested that one

aggravated robbery charge be dismissed because “only one individual

testified that they were robbed.”   The trial court denied the

motion.

    {¶17} Appellant testified in his own defense that he “was

asleep at my Mom’s, me and my fiancee Alexa Belkey,” and when they

awoke, Belkey’s “forehead was swelled up” with an infection.
                                                                      11
ROSS, 23CA15

Because Belkey needed medical attention, appellant called Leona

Hickman to drive her to the hospital.    While Hickman and Steve

Hickock drove Belkey to the hospital, appellant visited Chloe

Sheffield and “sat there with Chloe for a little bit and Chloe

didn’t have no cigarettes.”   Because appellant only had “a couple,”

he told Sheffield he would “take her to Bainbridge and get her

some.”    Appellant stated that he and Sheffield were halfway to

Bainbridge when Caitlynn Ratliff called and asked if he could stop

at her home.    Appellant and Sheffield then drove to a gas station

and “put twenty dollars in gas, bought two packs of cigarettes,”

then visited Ratliff.    Appellant described Ratliff as “just a

friend.    I go over to her house and shoot tattoos [creating and

applying tattoos].”

    {¶18} Appellant explained that the previous night, he visited

Ratliff’s house to tattoo Ratliff’s neck when she repeatedly asked

him to “take her to her kids’ grandfather’s house to pick some

property up of hers that she didn’t want to get ruined.”    Appellant

refused because it was 1:30 or 2:00 in the morning, and he had a

borrowed truck that “didn’t have good tags on it.”    Appellant also

clarified, “I don’t got a license.”

    {¶19} Appellant stated that he visited Ratliff the next day and

she “kept begging me” to take her to LeMaster’s home, so appellant
                                                                       12
ROSS, 23CA15

and Ratliff dropped off Chloe Sheffield and drove to LeMaster’s

home.   Appellant explained that Ratliff told him that LeMaster

“wasn’t there yet,” but said, “my stuff is already sitting out here

and he told me to go ahead and get it.”     Appellant testified that

Ratliff left the truck for five or ten minutes and returned with a

black trash bag with pants hanging out.     A couple of boxes also

fell from the trash bag, and appellant noticed shotgun shells.

Appellant stated that Ratliff retrieved another “load” when Morris

pulled in.     Appellant also explained that the clutch slipped and

    the truck jumped and I struck dude’s truck and she
    [Ratliff] told me to just pull out through the yard, so I
    tried to go through the yard and I got stuck. He was out
    of the truck screaming I’m calling the Sheriff, I’m calling
    the Sheriff, and I tried to get out and tell him what was
    going on and when I did, she jumped out of the truck and
    took off running. So he jumped in the truck and backed up
    and he took off up the road. I didn’t know what to do. I
    was scared. I got back in the truck and I shut it off and
    I left too.


    {¶20} Appellant maintained that he “never one time entered that

residence,” denied he possessed a gun, denied he threatened Morris,

and denied he possessed Morris’s cell phone.     Appellant said that

once he entered the wood line, he ran when he heard a 12-gauge

shotgun blast come from the house area.    Appellant explained that

he ran through the woods, called Alexa Belkey, told her his truck

was stuck and asked for a ride.     Soon thereafter, Leona Hickman,
                                                                     13
ROSS, 23CA15

Steve Hickock, and Belkey picked up appellant.

     {¶21} Appellant further testified that he owned two phones on

February 22, 2022, but claimed he did not possess Morris’ cell

phone.   Appellant also stated that when Captain Addy spoke to him

at the jail, he told him “what actually happened.”   Appellant

explained:


     Alex had to go to the hospital that morning. Leona took
     her to the hospital.    I went to Chloe’s and I went to
     Bainbridge to get cigarettes and gas and once I went to
     get cigarettes and gas ... Caitlyn Ratliff had called me,
     asked me to come over there. She needed to go pick her
     stuff up from her kid’s grandfather’s and I told her I
     would give her a ride after I denied it the day before, so
     then she got in the truck with me and Chloe and once me
     and Chloe went, we dropped Chloe off so she could go to
     her Mom’s wedding and on the way - - yeah, to South Salem,
     we dropped Chloe off and then went to Frankfort and once
     we got there, we sat there maybe ten minutes and she got a
     text. She said her stuff was already sitting out there,
     she could get it. She went around back and was gone maybe
     five, ten minutes, come back with a trash bag. It ripped.
     I got out, helped her get it, the stuff off the ground.
     She put the bag in the truck and went back around the side
     and come back with an armload of stuff and that’s when the
     white truck pulled in. I slipped a clutch, pulled in the
     yard, and I got out and tried to speak with him. He said
     he was calling the sheriff and then he jumped in his truck
     and backed up and took off and she had ran into the woods.


     {¶22} Appellant denied that he or Ratliff entered the property,

denied he intended to commit a crime when he visited the property,

and denied he discharged a firearm during the series of events.      On

cross-examination, appellant conceded he has “numerous prior felony
                                                                        14
ROSS, 23CA15

convictions.”   Appellee noted a (1) 2018 Marion County illegal

conveyance of a drug of abuse into a detention facility conviction,

(2) a 2012 Fayette County weapon under disability conviction, (3) a

2012 Fayette County grand theft of firearms conviction, (4) a

Fayette County safe-cracking conviction, (5) a Fayette County

possession of criminal tools conviction, and (6) a Highland County

aggravated robbery with a gun specification conviction.      Appellee

then asked if appellant “found [himself] in a similar situation” in

this case, to which appellant replied, “No, Ma’am.”

     {¶23} Appellant maintained that on the day in question, he

stayed in the truck other than to help Caitlynn Ratliff collect

items that fell from the ripped trash bag.     He also observed

Ratliff with a blanket covering items.     Appellant said he observed

pants, “a couple little tin boxes,” and “some shotgun shells” fall

out of the trash bag.     Appellant also testified that he

“accidentally” backed into Shane Morris.     Appellant explained that

when Morris said he planned to call the sheriff, Ratliff “got

scared” and they ran into the woods and then “went up the road

because we didn’t stay back there because somebody come and shot a

gun... into the woods.”     Appellant believed Morris shot into the

woods.   Appellant also admitted he told Captain Addy he owned the

firearm found in the Honda Element.
[Cite as State v. Stodgel, 2024-Ohio-5182.]

        {¶24} Alexa Belkey testified that she is appellant’s fiancee

and that Caitlynn Ratliff is a friend.                  At Ratliff’s apartment on

February 21, 2022, appellant “was giving tattoos” when Ratliff

asked for a ride, but it was late.                  Appellant and Belkey “just

decided to go home.”                  Belkey did not overhear the discussion

regarding where Ratliff wished to go because she “went to the

emergency room.”               Belkey then received a call from appellant on the

evening of February 22 when “he had asked for us to come help him

get his truck out of the mud.”                  Belkey rode with Leona Hickman and

a man named Hickock to the scene and picked up appellant while “it

was still daylight, so evening time.”                  Belkey stated that, after

the group picked up appellant, police conducted a traffic stop and

“pulled us all out one by one” to question them.                  Belkey said law

enforcement “asked why I was there and I said that his truck was

stuck in the mud and that’s what we were there for.”                  Belkey denied

being asked to participate in a burglary.                  On cross-examination,

Belkey admitted that she did not know appellant was with Ratliff or

Chloe Sheffield on February 22 after Belkey visited the hospital.

Belkey also stated that she did not know what appellant did between

the time she went to the hospital in the early afternoon and when

the group picked up appellant later that evening.                  At that

juncture, the defense rested and appellee called two rebuttal

witnesses.
[Cite as State v. Stodgel, 2024-Ohio-5182.]

        {¶25} Shane Morris, appellee’s first rebuttal witness,

testified that, after appellant rammed his Chevy Tahoe with the

Ford pickup truck, Morris drove to his friend’s house and his

friend drove him to the property ten to fifteen minutes later.

During that time, Morris called the police.        Morris also stated

that he did not fire a weapon at the property or even have a

firearm with him that day.

        {¶26} Appellee also called Detective Davidson in rebuttal.

Davidson testified that when he collected the trash bag from the F–

150 truck stuck in the yard, it did not appear to have any tears or

rips.       Davidson stated, “from my vehicle into the law complex, I

used that as one of the main bags to carry because there was so

many other loose items to put on the cart. . . the bag was well

intact.”         Davidson further testified that after they removed,

inventoried, and photographed the items from the bag, he discarded

the bag.

        {¶27} After deliberation, the jury found appellant guilty of

(1) one count of aggravated robbery in violation of R.C. 2911.01, a

first-degree felony, (2) one count of aggravated robbery in

violation of R.C. 2911.01, a first-degree felony, and (3) one count

of burglary in violation of R.C. 2911.12, a third-degree felony.

In addition, appellant waived his right to jury trial and elected a
[Cite as State v. Stodgel, 2024-Ohio-5182.]

bench trial for the weapons under disability charge and, after

hearing the evidence, the court found him guilty of the weapons

charge.        Moreover, the court determined that pursuant to R.C.

2941.149(B), appellant is a repeat violent offender as specified in

counts one and two.

        {¶28} The trial court sentenced appellant to (1) serve an 11 to

16.5-year prison term for count one aggravated robbery, 2) serve an

11 to 16.5.-year prison term for count two aggravated robbery, (3)

serve the prison terms for counts one and two consecutively for a

total 40-year minimum to a 45.5-year maximum, (4) serve a 24-month

prison term for count four having a weapon while under disability,

to be served concurrently with counts one and two, including a

mandatory 2-year postrelease control term, (5) serve a new 489-day

prison term for a postrelease control violation pursuant to R.C.

2929.141(A)(1)[appellant served a postrelease control term at the

time of the commission of these felonies], to be served

consecutively to the terms imposed on counts one and two, (6) serve

a 2 to 5-year postrelease control term, and (7) pay $1,784.72

restitution to Shane Morris.                  The trial court also merged Counts 1

and 3, and appellee elected to sentence on Count 1.                  This appeal

followed.

                                                I.
[Cite as State v. Stodgel, 2024-Ohio-5182.]

        {¶29} In his first assignment of error, appellant asserts that

his trial counsel rendered ineffective assistance of counsel in

violation of his constitutional guarantees.                    Specifically,

appellant contends that counsel failed to prevent any mention to

the jury of the repeat-violent-offender specification and the

weapon-under-disability count and failed to prevent the admission

of appellant’s extensive criminal history for impeachment purposes.

        {¶30} The Sixth Amendment to the United States Constitution and

Article I, Section 10 of the Ohio Constitution provide that

defendants in all criminal proceedings shall have the assistance of

counsel for their defense.                    The United States Supreme Court has

generally interpreted this provision to mean a criminal defendant

is entitled to the “reasonably effective assistance” of counsel.

Strickland v. Washington, 466 U.S. 668 (1984).

        {¶31} To establish constitutionally ineffective assistance of

counsel, a defendant must show that (1) his counsel's performance

was deficient and (2) the deficient performance prejudiced the

defense and deprived the defendant of a fair trial.                    See

Strickland, 466 U.S. at 687; State v. Myers, 2018-Ohio-1903, ¶ 183;

State v. Powell, 2012-Ohio-2577, ¶ 85.                    “Failure to establish

either element is fatal to the claim.”                    State v. Jones, 2008-Ohio-

968, ¶ 14 (4th Dist.).                    Moreover, if one element is dispositive, a
[Cite as State v. Stodgel, 2024-Ohio-5182.]

court need not analyze both.                  State v. Madrigal, 87 Ohio St.3d 378,

389 (2000).

        {¶32} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of

the legal community: ‘The proper measure of attorney performance

remains simply reasonableness under prevailing professional norms.’

”    Padilla v. Kentucky, 559 U.S. 356, 366 (2010), quoting

Strickland, 466 U.S. at 688.                  Prevailing professional norms dictate

that “a lawyer must have ‘full authority to manage the conduct of

the trial.’ ”             State v. Pasqualone, 2009-Ohio-315, ¶ 24, quoting

Taylor v. Illinois, 484 U.S. 400, 418 (1988).

        {¶33} Further, “the performance inquiry must be whether

counsel's assistance was reasonable considering all the

circumstances.”              Strickland, 466 U.S. at 688.      Accordingly, “[i]n

order to show deficient performance, the defendant must prove that

counsel's performance fell below an objective level of reasonable

representation.”               State v. Conway, 2006-Ohio-2815, ¶ 95 (citations

omitted).          In addition, when considering whether trial counsel's

representation amounts to deficient performance, “a court must

indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance.”                  Strickland,

466 U.S. at 689.               Thus, “the defendant must overcome the
[Cite as State v. Stodgel, 2024-Ohio-5182.]

presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.”                 Id.    Additionally, “[a]

properly licensed attorney is presumed to execute his duties in an

ethical and competent manner.”                State v. Taylor, 2008-Ohio-482, ¶

10 (4th Dist.), citing State v. Smith, 17 Ohio St.3d 98, 100

(1985).        Therefore, a defendant bears the burden of showing

ineffectiveness by demonstrating that counsel's errors were “so

serious” that counsel failed to function “as the ‘counsel’

guaranteed * * * by the Sixth Amendment.”                 Strickland, 466 U.S. at

687; e.g., State v. Gondor, 2006-Ohio-6679, ¶ 62; State v. Hamblin,

37 Ohio St.3d 153, 156 (1988).

        {¶34} To establish prejudice, a defendant must demonstrate that

a reasonable probability exists that “but for counsel's errors, the

result of the proceeding would have been different.                  A reasonable

probability is a probability sufficient to undermine the outcome.”

Strickland, 466 U.S. at 694; e.g., State v. Short, 2011-Ohio-3641,

¶ 113; State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three

of the syllabus; accord State v. Spaulding, 2016-Ohio-8126, ¶ 91

(prejudice component requires a “but for” analysis).                  “ [T]he

question is whether there is a reasonable probability that, absent

the errors, the factfinder would have had a reasonable doubt

respecting guilt.”                 Strickland, 466 U.S. at 695.   Further, courts

ordinarily may not simply presume the existence of prejudice but
[Cite as State v. Stodgel, 2024-Ohio-5182.]

must require a defendant to establish prejudice affirmatively.

State v. Clark, 2003-Ohio-1707, ¶ 22 (4th Dist.).

        {¶35} Moreover, we have recognized that speculation is

insufficient to establish the prejudice component of an ineffective

assistance of counsel claim.                       E.g., State v. Tabor, 2017-Ohio-8656,

¶ 34 (4th Dist.); State v. Jenkins, 2014-Ohio-3123, ¶ 22 (4th

Dist.); State v. Simmons, 2013-Ohio-2890, ¶ 25 (4th Dist.); State

v. Halley, 2012-Ohio-1625, ¶ 25 (4th Dist.); State v. Leonard,

2009-Ohio-6191, ¶ 68 (4th Dist.); accord State v. Powell, 2012-

Ohio-2577, ¶ 86.



   Repeat Violent Offender Specification & Weapon Under Disability

        {¶36} Appellant contends that his trial counsel provided

ineffective assistance when he failed to prevent any mention to the

jury of the repeat-violent-offender specification and the weapon-

under-disability count.                       Appellant argues that, although counsel

attempted to prevent the jury from learning that appellant faced

the repeat-violent-offender specifications and the weapons-under-

disability count by opting to try those charges to the judge,

because he did not resolve that issue prior to opening statements

the prosecution mentioned those charges during its opening

statement.           Appellant deems counsel’s failure constitutionally
[Cite as State v. Stodgel, 2024-Ohio-5182.]

deficient because, he contends, once the jury hears that those

charges exist, the jury knows that appellant is a violent felon,

particularly when appellee detailed the prior violent felony

“having been convicted of a felony offense of violence, aggravated

robbery, in violation of R.C. 2911.01 of the Ohio Revised Code, out

of Highland County Court of Common Pleas on August 31st of 2006.”

Moreover, appellant argues that the prior conviction is for the

same crime for which appellee charged him in the case at bar, which

aggravated counsel’s failure.

        {¶37} Appellee, on the other hand, argues that in the instant

case appellant’s counsel did, as a trial tactic, choose to try to

the bench the repeat-violent-offender specification and the weapon-

under-disability count.                       Immediately after the court seated the

jury, during a bench conference the following exchange occurred:

        BREHM: We want to try the W.U.D. to the bench.

        COURT: What’s that?

        BREHM: We want to try the W.U.D. to the bench.

        COURT: Okay. So, you’re not -

        BREHM: I thought we would take a break before we did this.
        I just want to talk to him about pleading no contest to
        the W.U.D. but I will just waive it, and just try it to
        the bench.

        COURT: Just the weapons under disability, but you’re still
        left with two specifications you know that.

        BREHM: I think the - I think the - the RVO specs is those
[Cite as State v. Stodgel, 2024-Ohio-5182.]

        aren’t heard by the jury is my understanding.

        SCHUMAKER: Yes, but you have firearm specifications as
        well.

        BREHM: Yeah, but the gun specs- the gun specs are his
        convictions from his prior record so that’s why we try that
        to the bench strategy wise. I mean it’s all done in the
        past.

        COURT: Ms. Schumaker.

        SCHUMAKER: I still have to -

        COURT: What?

        SCHUMAKER: I still have to put it under the evidence of
        the RVO.

        COURT: I agree. So it – I mean unless – I mean – yeah,
        she still has to present the evidence so you want to waive
        on the weapons under disability and have additional
        portions of the trial outside the presence of the jury?

        BREHM: I’m sorry, what’s your question, sir?

        COURT: So do you anticipate you’re going to waive the jury
        for only Count Four.

        BREHM: Yes.

        COURT: And then you want to have a portion of this trial
        held outside the presence of the jury?

        BREHM: No, sir. I think you will hear that simultaneously
        with the evidence.

        SCHUMAKER: I don’t know that they’re going to be elements
        that you would hear outside of the jury -

        COURT: I don’t know how -

        SCHUMAKER: that the jury wouldn’t hear.     I mean if you
        don’t want to seem -
[Cite as State v. Stodgel, 2024-Ohio-5182.]


        COURT: I don’t see how that - there’s going to be cross-
        pollination if you will on evidence without question
        because of the nature of the other charges. Now, if you’re
        waiving consideration and asking the Court to simply make
        that - take that Count - what you’re asking to take that
        Count away from the jury, have them make the determination
        on One, Two, and Three, and the Court on Four?

        BREHM: Certainly.

        COURT: Is that what you’re asking?

        BREHM: Yeah. Yeah.

        COURT: I’ve never had anybody do it that way before but I
        think you can waive the jury for purposes of the court
        making the - - I am going to question your client to make
        sure he understands and consents outside the presence of
        the jury.

        BREHM: Yes, sir. I was trying to keep a portion of that
        off out of their ear but I’ll talk to him more about it
        and see.

        COURT: I’m still not sure how your - -

        SCHUMAKER: Yeah. I still present the same evidence.

        COURT: It’s still going to be the same for those specs.

        BREHM: Okay. I’ll talk to him about it. Can I have five
        minutes and I’ll talk to him for a bit? It’s what we had
        discussed before and he wanted me to do that so - -

        COURT: It just - - how long - - I can’t imagine you guys
        don’t have a super long opening, right. My intent is to -
        -

        BREHM: My opening will be super quick.

        COURT: Do you want to talk to him a minute before you open;
        is that what you’re asking me?
        BREHM: She’s going to go through her opening and we can
        talk during this.
                                                                    25
ROSS, 23CA15

    COURT: How about this.        You talk to him after we do the
    opening.

    BREHM: We’ll do it that way.

    COURT: If we need to do anything on the record before I
    bring them back in afterwards -

    BREHM: Okay, okay.     That works.   Thank you.

    COURT: Okay.

    BREHM:     Yeah, thank you.

    {¶38} As appellee also points out, after the bench conference

and before the parties gave opening statements, the trial court

instructed the jury: “remember that Opening Statements are designed

to explain to you what each attorney thinks the evidence will or

will not show and what the case is going to be about.    The

statements of counsel in and of themselves are not evidence, just a

preview of what they think the evidence will be.”     The parties then

gave opening statements and appellee referenced the charges during

opening statement:

    There is a specification of - - repeat violent offender
    specification finding that the offender, Brandon C.
    Stodgel, is a repeat violent offender as defined in Section
    2921 - - or 2929.01 of the Ohio Revised Code, having
    previously been convicted of aggravated robbery, section
    2911.01 of the Ohio Revised Code, a first degree felony
    offense of violence, in the Court of Common Pleas, Highland
    County, Ohio, on or about August 31st, 2006.
                                                                      26
ROSS, 23CA15

In addition, appellee referenced the repeat violent offender

specification in Count 2, the firearm specification to Count 1, and

the weapon under disability prior conviction from Highland County.

       {¶39} After appellant’s opening statement, the court held a

bench conference and stated, “defense counsel has indicated to the

Court that the defendant wishes to waive his right to a jury on

counts one and two with regard to the two specifications, each of

those containing a repeat violent offender specification and a

firearm specification.    Is it the firearm as well or do you wish to

- -”    Defense counsel then stated, “It would just be the RVOs.”

The court then stated, “Just the RVO, okay.    So that I understand,

you’re waiving for the Repeat Violent Offender specification on

Counts One and Two and also waiving his right to a jury trial on

Count Four, the weapons under disability, and opting instead for

the court to determine whether the state has proven the RVO specs

and Count Four beyond a reasonable doubt; is that correct?”

Counsel agreed.    In addition, counsel stated, “We would stipulate

to the convictions that would give rise to the RVO specification

and also the weapon under disability charge in Count Four.”

       {¶40} Appellee contends (1) that trial counsel adopted a

strategy to try these charges to the bench so the jury did not hear
                                                                    27
ROSS, 23CA15

any evidence or review any exhibits related to these charges, and

(2) the trial court clearly explained to the jury that counsel’s

remarks are not evidence.    Thus, appellee argues that trial counsel

employed a trial strategy to try those offenses to the bench to

eliminate the requirement to prove the prior convictions, even

though the timing of the decision to try the cases to the judge may

not have been ideal.    Thus, after the brief mention of the charges

in opening statement, appellee made no reference to the charges

during appellee’s case.

     {¶41} In order to find that appellant’s trial counsel performed

ineffectively, appellant must establish prejudice.     In other words,

appellant must show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.”     Strickland at 694.   A “reasonable

probability” is more than “some conceivable effect,” but less than

“more likely than not [the error] altered the outcome of the case.”

Strickland at 693.   A “reasonable probability” is a probability

sufficient to undermine confidence in the result of the proceeding.

Strickland at 690-691; Williams v. Taylor, 529 U.S. 362, 390-391

(2000).

     {¶42} In State v. Bradford, 2020-Ohio-4563 (4th Dist.), we
                                                                    28
ROSS, 23CA15

recognized that generally “[t]he existence of a prior offense is

such an inflammatory fact that ordinarily it should not be revealed

to the jury unless specifically permitted under statute or rule.”

Id. at ¶ 30, citing State v. Allen, 29 Ohio St.3d 53, 55 (1987).

However, “[w]hen a prior conviction is an element of the charged

offense, it may be admitted into evidence for the purpose of

proving that element.”   Id., citing State v. Halsell, 2009-Ohio-

4166, ¶ 13 (9th Dist.); accord State v. Thomas, 2024-Ohio-2281, ¶

37 (4th Dist.).

     {¶43} R.C. 2941.149 provides that “[t]he court shall determine

the issue of whether an offender is a repeat violent offender.”

Thus, by statute, the trial court determines the repeat-violent-

offender specification, not the jury.   See State v. Hunt, 2013-

Ohio-5326, ¶ 76 (10th Dist.)(defendant may waive a jury on a weapon

under disability charge, but “by statute,” the repeat violent

offender specification “is to be determined by the court rather

than the jury”).   Appellant contends, however, that mentioning the

repeat-violent-offender specifications to the jury caused him

prejudice.

     {¶44} In the case sub judice, our review of the record reveals

that appellee adduced at trial overwhelming evidence to support the
                                                                       29
ROSS, 23CA15

charges.     Circumstantial evidence through the testimony of LeMaster

and Morris established that the home had been burglarized.

LeMaster testified to the forced entry through the garage and

viewed in appellant’s vehicle items from inside the home.     Morris

observed appellant and Ratliff coming from the victim’s home

carrying bags.     Morris testified that appellant rammed his vehicle,

robbed him of his cell phone at gunpoint, shot at Morris as he

drove away, and ran into the woods along with Ratliff.     Officers

also found appellant’s vehicle in the front yard of the victim’s

home.    In addition, appellant admitted to officers that he owned

the firearm found in the Honda Element, and that the other

occupants of the Element had “nothing to do with it.”     Appellant

also informed Captain Addy immediately after his capture that he

“hung himself,” and that he “did it this time.”

    {¶45} Moreover, the jury could certainly question the

credibility of appellant’s testimony and his second version of

events given to Captain Addy.     See State v. Purdin, 2013-Ohio-22, ¶

19 (4th Dist.).     A jury, sitting as the trier of fact, may choose

to believe all or part or none of the testimony of any witness who

appears before it.     State v. Daniels, 2011-Ohio-5603, ¶ 23 (4th

Dist.)     Thus, in the case sub judice, the jury could easily choose
                                                                       30
ROSS, 23CA15

to believe that appellant fabricated his later statement to Addy

and his trial testimony.     Further, officers found a firearm and

live ammunition in the car from which they apprehended appellant

approximately 20 minutes after the incident.     Therefore, the jury

could also choose to disregard appellant’s contention that the only

evidence that appellant used a firearm is Morris’s testimony.

     {¶46} It is well settled that debatable strategic and tactical

decisions may not form the basis of a claim for ineffective

assistance of counsel, even if a better strategy is available.

State v. Phillips, 74 Ohio St.3d 72, 85 (1995); State v. Lawrence,

2019-Ohio-2788, ¶ 19 (12th Dist.).    Here, trial counsel should have

advised the trial court of his intentions prior to opening

statement.     Nevertheless, we agree with appellee that, even if

trial counsel’s failure to prevent any mention to the jury of the

repeat-violent-offender specifications and the weapons-under-

disability count constituted ineffective assistance, appellant

failed to establish a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.”     State v. Spaulding, 2016-Ohio-8126, ¶ 153,

quoting Strickland at 694.     Here, the record before us is replete

with evidence that appellant committed the charged crimes.     Thus,
                                                                    31
ROSS, 23CA15

pursuant to Spaulding, even if the failure to prevent the mention

of the repeat-violent-offender specifications and the weapons-

under-disability charge to the jury arguably fell below effective

representation, we do not believe appellant demonstrated prejudice.

State v. Jones, 2018-Ohio-1130, ¶ 18 (1st Dist.).

     {¶47} Therefore, we are unpersuaded that the result would have

been different if the jury had not heard appellee’s opening

statement.

      Admission of Criminal History for Impeachment Purposes

     {¶48} Appellant also contends that he received ineffective

assistance of counsel when counsel failed to prevent the admission

of appellant’s criminal history for impeachment purposes.

Appellee, however, points out that counsel correctly acknowledged

at trial that appellant’s prior offenses would be admissible for

impeachment purposes if appellant chose to testify.

     {¶49} “When an accused testifies at trial, Evid.R. 609(A)(2)

allows the state to impeach the accused's credibility with evidence

that the accused was convicted of an offense punishable by

imprisonment in excess of one year and if the court determines that

the probative value of the evidence outweighs the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.”
                                                                     32
ROSS, 23CA15

State v. Bryan, 2004–Ohio–971, ¶ 132; State v. Dickess, 2008–Ohio–

39, ¶ 38 (4th Dist.).   “The existence of a prior offense is such an

inflammatory fact that ordinarily it should not be revealed to the

jury unless specifically permitted under statute or rule.     The

undeniable effect of such information is to incite the jury to

convict based on past misconduct rather than restrict their

attention to the offense at hand.”   State v. Allen, 29 Ohio St.3d

53, 55 (1987).



     {¶50} Consequently, a trial court must consider the prejudicial

effect of prior offense impeachment evidence even when such

evidence may be properly presented to the jury.   Evid.R. 609(A)(2).

Furthermore, the risk of unfair prejudice is greater when the prior

conviction is for the same crime with which a defendant is

presently charged.   The natural tendency of prior conviction

evidence in this situation is to instill in the jurors’ minds the

idea that “ ‘if he did it before, he probably did it this time.’ ”

State v. Goney, 87 Ohio App.3d 497, 502, (2nd Dist.1993), quoting

Gordon v. United States, 383 F.2d 936, 940 (C.A.D.C.1967).

Therefore, “ ‘those convictions which are for the same crime should

be admitted sparingly.’ ”   Id.
                                                                    33
ROSS, 23CA15

    {¶51} Evid.R. 609, Impeachment by Evidence of Conviction of

Crime, provides:

For the purpose of attacking the credibility of a witness:

    * * *

    (2) Notwithstanding Evid.R. 403(A), but subject to Evid.R.
    403(B), evidence that the accused has been convicted of a
    crime is admissible if the crime was punishable by death
    or imprisonment in excess of one year pursuant to the law
    under which the accused was convicted and if the court
    determines that the probative value of the evidence
    outweighs the danger of unfair prejudice, of confusion of
    the issues, or of misleading the jury.

    (3) Notwithstanding Evid.R. 403(A), but subject to Evid.R.
    403(B), evidence that any witness, including an accused,
    has been convicted of a crime is admissible if the crime
    involved dishonesty or false statement, regardless of the
    punishment and whether based upon state or federal statute
    or local ordinance.


    {¶52} As appellee observes, the Notes to Evid.R. 609 provide

that the “high probative value of convictions [involving dishonesty

and false statements] in assessing credibility,” pursuant to

Evid.R. 609(A)(3) are usually not excluded because of unfair

prejudice.   However, many courts have concluded that “[c]ourts

routinely allow prior conviction evidence under Evid.R. 609(A)(2)

even if the prior conviction did not contain an element of

untruthfulness.”   State v. Topping, 2012-Ohio-5617 (4th Dist.),

citing e.g., State v. Brown, 2003–Ohio–5059, ¶ 27 (no abuse of
                                                                        34
ROSS, 23CA15

discretion to allow evidence of prior drug convictions to impeach

aggravated murder defendant's credibility); State v. Benitez, 2011–

Ohio–5498, ¶ 66 (8th Dist.)(evidence regarding accused's prior

felonious assault conviction); State v. Sailor, 2004–Ohio–5207, ¶

39 (8th Dist.) (no abuse of discretion to permit evidence of

accused's prior drug-related convictions in aggravated murder

trial).   Moreover, as we held in Topping, to require a prior

conviction to be specifically probative of truthfulness would

defeat the purpose of Evid.R. 609(A)(2) and render Evid.R.

609(A)(3)1 meaningless.     Topping at ¶ 45.

     {¶53} Furthermore, when a defendant testifies prior crimes that

involve dishonesty and moral turpitude are generally not subject to

weighing the probative value against possible prejudice.     State v.

Lamp, 2021-Ohio-2354, ¶ 62 (7th Dist.), citing Evid.R. 609(A)(3),

excluding Evid.R. 403(B).    For example, theft and receiving stolen

property are crimes of dishonesty under Evid.R. 609(A)(3).      Lamp,

supra, citing State v. Turner, 2004-Ohio-1545, ¶ 88 (7th

Dist.)(aggravated robbery and theft); State v. Brown, 85 Ohio

App.3d 716, 726 (3d Dist. 1993) (aggravated burglary, grand theft,

and receiving stolen property); State v. Johnson, 10 Ohio App.3d

14, 16 (10th Dist. 1983) (petty theft and attempted receiving
                                                                      35
ROSS, 23CA15

stolen property); State v. Taliaferro, 2 Ohio App.3d 405, 406-407,

(5th Dist. 1981) (petty theft and attempted receiving stolen

property).     Burglary or breaking and entering also fall into the

category of crimes of dishonesty.     Lamp, id, citing State v. Ewing,

2006-Ohio-5523, ¶ 24 (10th Dist.) (burglary); State v. Wright, 1998

WL 355862 (7th Dist. June 24, 1998) (burglary); State v. Tolliver,

33 Ohio App.3d 110, 113, (5th Dist. 1986) (attempted breaking and

entering).

      {¶54} In the case at bar, we do not believe that trial counsel

provided ineffective assistance when counsel failed to object to

the admission of appellant’s criminal history for impeachment

purposes.    As appellee points out, appellee only asked the

permitted information regarding the offenses, such as “the name of

the crime [and] the time and place of the conviction.”     Topping at

¶ 52, citing McCormick on Evidence (4th Ed.1992 Strong) 57, Section

42.   Here, we believe that the trial court could have reasonably

determined that appellant’s prior convictions constituted relevant

and probative evidence to impeach appellant's credibility and the

probative value outweighed any prejudicial effect.     Thus, we do not

believe counsel provided deficient performance, nor do we find

prejudice.
                                                                       36
ROSS, 23CA15

     {¶55} Accordingly, we overrule appellant’s first assignment of

error.

                                   II.

     {¶56} In his second assignment of error, appellant asserts that

the trial court erred when it sentenced him to serve consecutive

sentences.     Appellant argues that the record does not clearly and

convincingly support the sentence under R.C. 2929.14(C)(4) and R.C.

2953.08.

     {¶57} Because the repeat-violent-offender specifications and

the firearm specifications must be consecutively imposed by

operation of law, appellant does not contest them.     However,

appellant challenges the discretionary consecutive imposition of

the second aggravated robbery sentence that increased his total

prison sentence from 29-34 ½ years to 40-45 ½ years.

     {¶58} R.C. 2953.08 governs appeals based on felony sentencing

guidelines. R.C. 2953.08(G)(2) states:

     The court hearing an appeal under division (A), (B), or
     (C) of this section shall review the record, including the
     findings underlying the sentence or modification given by
     the sentencing court.

     The appellate court may increase, reduce, or otherwise
     modify a sentence that is appealed under this section or
     may vacate the sentence and remand the matter to the
     sentencing court for resentencing. The appellate court's
     standard for review is not whether the sentencing court
                                                                    37
ROSS, 23CA15

     abused its discretion. The appellate court may take any
     action authorized by this division if it clearly and
     convincingly finds either of the following:

     (a) That the record does not support the sentencing court's
     findings under division (B) or (D) of section 2929.13,
     division (B)(2)(e) or (C)(4) of section 2929.14, or
     division (I) of section 2929.20 of the Revised Code,
     whichever, if any, is relevant;

     (b) That the sentence is otherwise contrary to law.

     {¶59} “Clear and convincing evidence is that measure or degree

of proof which is more than a mere ‘preponderance of the evidence,’

but not to the extent of such certainty as is required ‘beyond a

reasonable doubt’ in criminal cases, and which will produce 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 (1954), paragraph three of the syllabus.

     {¶60} Although appellant concedes that “there are plenty of

aggravating considerations supporting enhancements via consecutive

impositions, appellant contends that placing appellant’s

presumptive release date at age 76 rather than 65 is neither (1)

necessary to adequately protect the public, punish appellant, and

rehabilitate him, nor (2) the minimum sanction required to do so,

citing State v. Saxon, 2006-Ohio-1245, paragraphs one, two, and

three of the syllabus; State v. Gwynne I, 2019-Ohio-4761, ¶ 17;
                                                                    38
ROSS, 23CA15

State v. Gwynne II, 2022-Ohio-4607, ¶ 1-2, 31, see also R.C.

2929.11.    Appellant further argues that “[t]his is particularly

true given the five-and-a-half year administrative enhancement

available at the Ohio Department of Rehabilitation and Correction

(DRC).     If Mr. Stodgel at age sixty-five somehow remains a threat,

DRC can hold him for another five-and-a-half years.”

    {¶61} Appellee, however, points out that appellant does not

contend that the trial court failed to consider the R.C. 2929.11

factors, but rather argues that the sentence is excessive.

     R.C. 2929.14(C)(4) provides:

    If multiple prison terms are imposed on an offender for
    convictions of multiple offenses, the court may require
    the offender to serve the prison terms consecutively if
    the court finds that the consecutive service is necessary
    to protect the public from future crime or to punish the
    offender   and   that   consecutive   sentences   are   not
    disproportionate to the seriousness of the offender's
    conduct and to the danger the offender poses to the public,
    and if the court also finds any of the following:
    (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.
                                                                      39
ROSS, 23CA15


     (c) The offender's history of criminal conduct demonstrates
     that consecutive sentences are necessary to protect the
     public from future crime by the offender.


     {¶62} “In order to impose consecutive terms of imprisonment, a

trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its

findings into its sentencing entry * * *.”    State v. Bonnell, 2014-

Ohio-3177, ¶ 37.   However, the court “has no obligation to state

reasons to support its findings” and has no obligation “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.”     Id.; State v. Nolan,

2024-Ohio-1245, ¶ 18 (4th Dist.).    “[A] word-for-word recitation of

the language of the statute is not required, and as long as the

reviewing court can discern that the trial court engaged in the

correct analysis and can determine that the record contains

evidence to support the findings, consecutive sentences should be

upheld.”   Bonnell at ¶ 29.   “If the trial court fails to make the

requisite findings at the sentencing hearing, the imposition of

consecutive sentences is contrary to law even if the sentencing

entry includes the findings.”    State v. Conn, 2023-Ohio-2669, ¶ 26
                                                                    40
ROSS, 23CA15

(4th Dist.), citing State v. Brickles, 2021-Ohio-178, ¶ 9, 11 (4th

Dist.).

     {¶63} In the case sub judice, our review of the sentencing

transcript reveals that the trial court made the appropriate R.C.

2929.11 and 2929.12 findings.   As we recently held in Nolan, supra,

R.C. 2953.08(G)(2) does not permit an appellate court to simply

conduct an independent review of a trial court’s sentencing

findings under R.C. 2929.12 or its adherence to the purposes of

felony sentencing under R.C. 2929.11. Nolan at ¶ 44, citing State

v. Bryant, 2022-Ohio-1878, ¶ 21, citing State v. Jones, 2020-Ohio-

6729, ¶ 41-42.   Moreover, R.C. 2953.08(G)(2) does not allow an

appellate court to modify or vacate a sentence based on its view

that the sentence is not supported by the record under R.C. 2929.11

and 2929.12.   Bryant at ¶ 22, citing Jones at ¶ 31, 39.



     {¶64} In the case sub judice, the sentencing hearing transcript

reveals that since age 20, (1) appellant has committed numerous

felony offenses, including violent offenses, (2) appellant pointed

a gun at Morris’s head when he took his cell phone after Morris

intervened during the robbery, (3) appellant served a postrelease

control term at the time of this offense, (4) appellant received
                                                                     41
ROSS, 23CA15

additional charges for assaulting a law enforcement officer during

the pendency of this case, and (5) appellant took no responsibility

for his actions.   Thus, in light of the foregoing, we do not

clearly and convincingly find that appellant’s sentence is contrary

to law.

    {¶65} We also note that in his reply brief, appellant requests

this court to hold this decision until the Supreme Court of Ohio’s

decision in State v. Glover, 2023-Ohio-1153 (1st Dist.), appeal

allowed by State v. Glover, 2023-Ohio-2664.   Glover is pending at

the Supreme Court of Ohio after oral arguments on February 7, 2024

and raises the following propositions of law: (1) Neither the trial

nor the appellate courts are required by R.C. 2929.14(C)(4) to

focus on a defendant’s aggregate prison term when imposing or

reviewing consecutive sentences, and (2) the clear and convincing

standard of review outlined in R.C. 2953.08(G)(2) does not allow

the court of appeals to substitute its judgment for that of the

trial court.   As an intermediate appellate court, we are obligated

to follow the Ohio Supreme Court’s controlling authority.   Although

we see no reason to hold this decision for the Supreme Court of

Ohio’s pending decision, we recognize and encourage appellant to

consider an appeal of the instant case to the Ohio Supreme Court to
                                                                    42
ROSS, 23CA15

preserve the consecutive sentence issue until Glover is resolved.

    {¶66} In the case sub judice, we point out that the sentence

the trial court imposed is within the statutory range.   Further,

our review is limited, under R.C. 2953.08(G)(2)(a), to whether the

record clearly and convincingly does not support the trial court's

findings under R.C. 2929.14(C)(4).

    {¶67} Accordingly, for all of the foregoing reasons, we

overrule appellant’s second assignment of error and affirm the

trial court’s judgment.



                                                                    JU

                                                              DGMENT

                                                              AFFIRME

                                                              D.
ROSS, 23CA15

                                                                     43
                          JUDGMENT ENTRY

     It is ordered that the judgment be affirmed.   Appellee shall
recover of appellant the costs herein taxed.

    The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court
directing the Ross County Common Pleas Court to carry this judgment
into execution.

     If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.

     A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

    Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

                                   For the Court




    BY:_____________________________
                                       Peter B. Abele, Judge

                         NOTICE TO COUNSEL
     Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.