Opinion
No. 108332
02-20-2020
STATE OF OHIO, Plaintiff-Appellee, v. DAVID G. FORSTON, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Carl J. Mazzone, Assistant Prosecuting Attorney, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and Robert McCaleb, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-625684-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Carl J. Mazzone, Assistant Prosecuting Attorney, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and Robert McCaleb, Assistant Public Defender, for appellant. MARY EILEEN KILBANE, J.:
{¶ 1} Defendant-appellant David G. Forston appeals his sentence, and asks this court to vacate the consecutive sentences imposed by the trial court. For the reasons that follow, we affirm.
Facts
{¶ 2} David G. Forston was indicted on February 21, 2018, with two counts of felonious assault, Count 1 and Count 2 that are both second-degree felonies; Count 3, domestic violence, a first-degree misdemeanor; Count 4, discharge of a firearm, a third-degree felony; and Count 5, having weapons while under a disability, a third-degree felony. Both counts of felonious assault were accompanied by one-year and three-year firearm specifications respectively.
{¶ 3} These charges arose from a January 25, 2018 incident where Forston attacked his ex-girlfriend and her boyfriend at a gas station. Forston saw the couple outside the station, charged them and fired two shots. The male victim was a licensed concealed carry weapon permit holder and returned fire; Forston fled and was finally brought into custody on October 25, 2018.
{¶ 4} On October 26, 2018, Forston pled not guilty to each count in the indictment. On January 23, 2019, Forston entered into a plea agreement with the state. In accordance with his plea, the state requested that Count 3 of domestic violence and Count 4 of discharge of firearm be nolled. The charges were nolled and Forston pled guilty to Count 1 of felonious assault with a one-year firearm specification and Count 2 of felonious assault with a three-year firearm specification. Forston also pled guilty to Count 5 of having weapons while under disability.
{¶ 5} After conducting a full sentencing hearing on February 20, 2019, the court sentenced Forston to seven years on Count 1, four years on Count 2, and 12 months on Count 5. Counts 1 and 2 were to run consecutive to each other and both were to run concurrent with Count 5 for a total sentence of 11 years. Forston filed this timely appeal with a single assignment of error for our review.
Assignment of Error
The trial court erred in imposing consecutive sentences.
Standard of Review
{¶ 6} We review consecutive sentences using a "clear and convincing" standard. State v. Allison, 2017-Ohio-7720, 97 N.E.3d 1043 (8th Dist.). R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a reviewing court may overturn the imposition of consecutive sentences where the court "clearly and convincingly" finds that (1) "the record does not support the sentencing court's findings under R.C. 2929.14(C)(4)," or (2) "the sentence is otherwise contrary to law."
{¶ 7} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, the trial court must find that consecutive sentences are: (1) necessary to protect the public from future crime or to punish the offender; (2) that such sentences would not be disproportionate to the seriousness of the conduct and to the danger the offender poses to the public; and, (3) that one 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 postrelease 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 from future crime by the offender.
{¶ 8} Compliance with R.C. 2929.14(C)(4) requires the trial court to make these statutory findings at the sentencing hearing, where "'the [trial] court must note that it engaged in the analysis' and that it 'has considered the statutory criteria and specifie[d] which of the given bases warrants its decision.'" State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to discern that the record contains evidence to support the findings. State v. Davis, 8th Dist. Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court is not, however, required to state its reasoning to support its findings, nor is it required to give a rote recitation of the statutory language '"provided that the necessary findings can be found in the record and are incorporated in the sentencing entry."' Allison at ¶ 10, quoting Bonnell at ¶ 37. The trial court supplied the necessary findings here.
The Sentencing Hearing
{¶ 9} During the sentencing hearing, the trial court provided background on Forston's extensive criminal history. The court noted that Mr. Forston was convicted of, among other convictions: drug possession in 1999; drug possession in 2000; drug possession in 2002; drug trafficking in 2006; two domestic violence convictions, both involving the female victim in this case, in 2008; and trafficking in food stamps in 2013. Mr. Forston's lengthy history — spanning almost 20 years — proved influential in the sentence he received.
{¶ 10} The court then moved to its discussion under R.C. 2929.14(C)(4) and made three findings:
As to Counts 1 and 2, I am going to have Counts 1 and 2 served consecutive to each other. I believe consecutive prison terms — first of all, I think it's necessary to protect and punish you, and it's not disproportionate, and I find first of all, these crimes, the harm was so great or unusual that a single prison term does not adequately reflect the seriousness of the conduct, going into a gas station, shooting guns at people sitting there. It just — this community has enough of this, people with firearms that shouldn't have firearms, firing them at individuals.
{¶ 11} As we previously stated, the trial court is not required to give a "rote recitation of that statutory language." Allison, 2017-Ohio-7720, 97 N.E.3d 1043, ¶ 10 (8th Dist.). While its discussion could have been more robust, the court clearly made three findings as required by statute.
{¶ 12} In its first finding, the court stated that consecutive sentences are necessary to punish the offender. In its second finding, the court stated that the sentences were not disproportionate. And in its third finding, the court stated that R.C. 2929.14(C)(4)(b) applied because the harm done by Forston was so great or unusual.
{¶ 13} Forston concedes that the trial court engaged in some of the analysis required under R.C. 2929.14(C)(4), but specifically challenges the second and third finding, arguing that the court did not adequately explain itself and that the record is therefore lacking. We find no merit to this argument.
{¶ 14} The record reflects that the trial court made the second finding by noting that consecutive sentences are not disproportionate in this case. Furthermore, it is clear from the record that consecutive sentences are not disproportionate to the seriousness of the conduct and to the danger Forston poses to the public. Prior to its discussion of the R.C. 2929.14(C)(4) factors, the court discussed Forston's lengthy list of felony convictions and probation violations. The court also noted that Forston had a tumultuous relationship with the female victim in this case, that he was still upset over their break up, and that he had been involved in criminal activity with this particular victim for over ten years. As for the severity of his actions in this case, Forston spotted his ex-girlfriend and her boyfriend while they were parked at a gas station, decided to charge them and fire two shots at them before fleeing. Forston caused a serious risk to the both of the victims and displayed no regard for the potential dangers of a firefight in a public place; the seriousness of Forston's conduct and his danger to the public are not disproportionate to his sentence.
{¶ 15} Forston also argues that because the court stated that "this community has enough of this" when discussing the third finding, it cannot be said that Forston's conduct was so unusual as to merit consecutive sentences. Forston's contention might have merit if R.C. 2929.14(C)(4)(b) required only that conduct be so unusual that concurrent sentences are not adequate; that is not what the statute says. The language of R.C. 2929.14(C)(4)(b) requires that "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." (Emphasis added.) As we have already stated, and as the trial court made abundantly clear, the harm caused by Forston's conduct was so great that no single prison term would be adequate.
{¶ 16} We find that the record supports the imposition of consecutive sentences and that the trial court engaged in the correct analysis required under R.C. 2929.14(C)(4). See State v. Record, 8th Dist. Cuyahoga No. 108338, 2020-Ohio-189.
{¶ 17} For all the foregoing reasons, we affirm.
It is ordered that appellee recover from appellant 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 common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
MARY EILEEN KILBANE, JUDGE LARRY A. JONES, SR., P.J., and
RAYMOND C. HEADEN, J., CONCUR