rlG,f rr ^I '

43{'^

^ rl :3 dt -ciGr^ { f 'r# ^y,^ . L.cC,f.

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,Plaintiff-Appellee,

V.

141578

APP. CASE NO. 13AP-735

On Appeal for the FranklinCounty Court of AppealsTenth Appellate District

ERIK D. ZONARS,Defendant-Appellant.

MOTION OF DELAYED APPEAL OFERIK D. ZONARS

ORAL ARGUMENT REQUESTEDEVIDENTIARY HEARING REQUESTED

Erik D. Zonars (Hereinafter Erik) respectfully moves the Court pursuant to Ohio Supreme Court

Rule Il, Section 2(A)(4)(a) for leave to file a Delayed Appeal and a Notice of Appeal. This case

involves a felony and more than forty-five (45) days has passed since the Court of Appeals decision

was filed in this case.

A Memorandum in Support is attached.

Respectfully Submitted,

_`":-{i^^i;_s !_::3

r'f>'f ; p r^

%Sli^^f5";'^^i^ ^`S.^N^>i.. . / 'it^ ^'.^,i>i,^•.

b (`NVED

Erik D. Zonars #686-938Defendant-Appellant in Pro seRoss Correctional InstitutionP.O. Box 7010Chillicothe, Ohio 45601

SF'P.1 0 Z014.

CLERK OF COU

MEMQRANDUIYI AND AFFIDAVIT IN SUPPORT OF MOTION

On May 13, 2014 the Court of Appeals filed its decision in Erik's case. Attached is a copy of the

Court of Appeals opinion to this motion. I was unable to file a Notice of Appeal, and Memorandum in

Support of Jurisdiction within the forty-five (45) days of the Court of Appeals decision in his case as

required by statute for the following reasons:

Erik is incarcerated at Ross Correctional Institute, is indigent and has to deal with conditions

outside of his control. Those to include, but not lirnited to, limited access to the Courts and limited

access to copies. Furthermore, the Library functions on a pass system in which the ratio of passes to

iiunates is outlandish: 10 to 126, combine this with 3 other blocks x 126 and you can see how impeding

it can be for an inmate. Needless to say this makes it an extremely difficult task in order to perforin

legal research and create motions and put together adequate briefs.

No party should oppose the requested. delay as Erik has no assistants to assist him or freely

accessible access to an extensive Law Library such as the State has. Thus, it should not be a problem

for Erik to be granted filing of his Delayed Notice of Appeal in the interests ofjustice. Erik contends

that no party will be prejudiced by this granting,

This Motion is being made at the earliest possible time and pursuant to applicable Rules of

Court. For the reasons stated, Erik requests that this Notice of Delayed Appeal be granted.

CONCLUSION

Erik prays that this Honorable Court will grant him leave to file a delayed appeal based on theabove mentioned foregoing facts.

Respectfully Submitted,

Erik D. Zonars #686-938Defendant-Appellant in Pro seRoss Correctional InstitutionP.O. Box 7010Chillicothe, Ohio 45601

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Notice of Delayed Appeal was sent by ordinary

U.S. Mail, postage prepaid, on the day of filing to Franklin County Prosecuting Attorney's Office at 373

South H:igh St., 13th Floor, Columbus, Ohio 43215. on this _3el' day of August, 2014.

ByX^fr.>'^,^^>°^^^

Erik D. Zonars #686-938

AFFIDAVIT

State of Ohio )

) SS:County of Franklin )

I Erik Zonars Swear that on the following is tiue:

On May 13, 2014 the Court of Appeals filed its decision in Erik's case. Attached is a copy of the

Co' rt `f Appeals .^p:nlon to tllls m^tl^n. I.x as unable to file aNot:ce ofAppea.l and Memorandum in

Support of Jurisdiction within the forty-five (45) days of the Court of Appeals decision in his case as

required by statute for the following reasons:

Erik is incarcerated at Ross Correctional Institute, is indigent and has to deal with conditions

outside of his control. Those to include, but not limited to, limited access to the Courts and limited

access to copies. Furthermore, the Library functions on a pass system in which the ratio of passes to

inmates is outlandish: 10 to 126, combine this with 3 other blocks x 126 and you can see how impeding

it can be for an ininate. Needless to say this makes it an extremely difficult task in order to perform

legal research and create niotions and put together adequate briefs.

No party should oppose the requested delay as Erik has no assistants to assist him or freely

accessible access to an extensive Lad,,7 Library such as the State has. Thus, it should not be a problem

for Erik to be granted filing of his Delayed Notice of Appeal in the interests of justice. Erik contends

that no party will be prejudiced by this granting.

This Motion is being made at the earliest possible time and pursuant to applicable Rules of

Court. For the reasons stated, Erik requests that this Notice of Delayed Appeal be granted.

Erik prays that this Honorable Court will grant him leave to file a delayed appeal based on the

above mentioned foregoing facts.

Respectfully Submitted,

Erik D. Zonars #686-93$Defendant-Appellant in Pro seRoss Correctional InstitutionP.O. Box 7010Chillicothe, Ohio 45601

Sworn to and subscribed to in my presence this day ofA14 L6'20)_q.^

Andrew HartNotary Public, State of Ohio

My Commission Expires:

-? -? -"?-OM

iVlJ1AKY YfJBL1U

oA107 - H4

T7^T TT1L !ti(lT T^'P COL` n^n^ n T Q rn^ 0IsTn11V llll. VV VA\1 Vl° C11 I. t'.r1LU V1' 11\J

TENTH APPELLATE DISTRICT

State of Ohio,

V.

Plaintiff-Appellee,No. 1W-735

(C.P.C. No. 12CR-5831)

Erik D. Zonars, (REGULAR CALENDAR)

Defendant-Appellant.

D E C I S I O N

Rendered on May 13, 2014

O'GRADY, J.

Ron O'Brien, Prosecuting Attoriiey, and Barbara A.Farnbacher, for appellee.

Todd W. Barstow, for appellant.

APPEAL from the Franklin County Court of Common Pleas

{¶ 1} Defendant-appellant, Erik D. Zonars, appeals from a judgment of conviction

and sentence entered by the Franklin County Court of Common Pleas. For the following

reasons, we affirm.

1. FACTS AND PROCEDURAL HISTORY

{¶ 21 Appellant was indicted on multiple counts of aggravated burglary,

aggravated robbery, robbery and kidnapping, with each count containing specifications,

and. one count of having weapons while under disability. The indictment was later

amended, and the state requested the trial court enter a nolle prosequi for six counts of

robbery. The charges stemmed from allegations that appellant was part of a group that

performed a home invasion on October 28, 2012. The matter proceeded to a jury trial.

oA1.o7 - H5

No. 13AP-735 2

Appellant was tried along with one co-defendant. The following facts pertinent to this

appeal were adduced at trial.

{¶ 3} George Collins testified on behalf of the state. According to Collins, he was

introduced to appellant in 2o1o by a mutual acquaintance, and he only knew appellant by

his first name. Collins bought some tools from appellant a few months after they met, and

he loaned appellant $20 on another occasion. On yet another occasion, appellant offered

to sell Collins some jewelry, but Collins declined.

{l- 4} On October 26, 2o12, appellant called Collins and offered to sell him spools

of wire. Collins agreed and appellant arrived at Collins' house located at go9 Lawndale

Avenue in Franklin County, Ohio. Collins purchased the wire, and, while settling on a

price, the two discussed Collins' financial situation. Collins said he was struggling, but he

would be doing better soon because he was expecting settlement proceeds from a lawsuit

against the city of Columbus. The state also introduced evidence that there was an article

in the local newspaper indicating Collins was set to receive $82,500 in settlement

proceeds from the city.

M 5} Two nights later, on October 28, 2012, appellant called Collins and offered

to sell him a generator and some tools. Collins expressed interest and tlae two set a

meeting at Collins' house. Collins was waiting in his detached garage when appellant

arrived. Collins testified that appellant backed into his driveway all the way up to the

garage and got out of his car. Appellant was not wearing a mask. Moments later, Collins

saw two men wearing ski masks running up his driveway. One was carrying a shotgun,

the other an AK-47. As Collins turned to ru.n, appellant drew a handgun, put it to the back

of Collins' hea.d, and told him to get on the ground. Collins complied. The assailants tied

Collins' hands behind his back, picked him up, and appellant led him into the house tidth

a gun to the back of his head.

{^ 6} Collins indicated there were six other people living iri the house and they

were all home at the time of the incident: (1) Christina Perry, Collins' girlfriend, (2) C.M.,

Perryy's teenage son, (8) K.M., Perry's teenage daughter, (4) Cassie Perdue, Perry's cousin,

(5) Brandon Bowers, Perdue's boyfriend, and (6) J.B., Perdue and Bowers' baby. Collins

testified appellant walked him into the kitchen at gunpoint where they encountered Perry.

Appellant laid Collins facedown on the kitchen floor and asked him where the money and

0A107 - H6

^

aco

C14CY)

N

^:30

c^0

a^v^comaC.

0

000

:r_0Z,

0c.z.

LL

No. 13AP-735 3

drugs were located. Collins could hear his house being ransacked and screaming in the

basement. He testified he did not see anything further while the intruders were in the

house. He remained still looking at the floor for about 45 minutes. He did feel an

assailant slip a ring off his finger, and remove his wallet, cell phone, around $400 in cash,

and prescribed medication from his pockets. The intruders heard sirens and fled.

{¶ 7} Following their departure, Collins got up and Perry untied his hands.

Collins surveyed his house. It was indeed ransacked with mattresses flipped and dresser

drawers elI2ptied oLlt onto the iioor. Four flat screen TVs and other belongings were

niissing. When the police arrived, Collins told them what happened. He indicated

appellant was one of the perpetrators, but he was only able to provide appellant's first

name. On November 5, 2012, a detective brought a photo array to Collins' house

containing six pictures. According to Collins, he identified appellant's picture °'[w]ithin a

split second." (Tr. Vol. I, 143.) Collins also identified appellant as a perpetrator by

pointing him out in the courtroom.

{¶ 8} Collins admitted. during his testimony that he was convicted of felony level

receiving stolen property in 2007. He bought and used stolen equipment while running a

landscaping company. He testified he was sentenced to three years in prison, of which he

served 20 months.

{^ 9} Perry confirmed that the seven individuals indicated above were present in

the house on October 28, 2012. She was putting dishes away in the kitchen when Collins

walked in with a bald-headed man following him closely behind. Collins told her not to do

anything, and suddenly she was confronted by men wearing masks. They told both her

and Collills to get on the ground and they pointed guns in her face. Perry got down,

scooted into a corner, and that is where she remained for the duration of the ordeal. She

glanced up to see a feznale intruder petting her dog. She had her eyes covered up most of

the time, so she did not see appellant's face. She testified the intruders asked, "Where's

the settlement? Where's that money?" (Tr. Vol. II, 268.) She could also hear her children

in the basement crying, begging the intruders not to harm them. According to Perry, the

sound of sirens prompted the intruders to leave, but before they did, they stole a necklace

off her neck. Perry estimated the ordeal lasted about 45 minutes.

0A107 - H7

^

®00acnr

ar-IN04r

^

0N

®c^0le

^

caaCL

.10i:30Ud0^

0U

^►L

No. i3A.P-735 4

{¶ 10} Bowers testified he was watching TV in the basement witla C.M. and K.M. on

the night in question. He heard Collins enter the house and tell Perry not to move or say

anything. Suddenly, a masked man descended the stairs into the basement, pointed an

AK-47 at him, and told him to lay on the ground. He testified the intruder said, "We seen

the paper. We know he got his money. Where is it at?" (Tr. Vol. II, 302.) Bowers laid

down on the ground and, at different points, the intruder put the gun to Bowers' back and

pointed the gun at his head. The intruder also verbally abused and manhandled C.M. and

K.M. According to Bowers, a female i_ntruder joined the man with the gun in the

basement, threatened the occupants, and consulted about what items were available to

steal. Lntimately, the intruders took cell phones and a small amount of cash from the

occupants of the basement. The intruders also stole the basement TV. Bowers testified

that he heard sirens and that is when the intruders decided to flee.

{¶ 11} C.M. confirmed that he was in the basement with K.M. and Bower•s when a

masked man carrying an AK-47 came downstairs. The intruder ordered the occupants of

the basement to the ground and put the gun to C.M.'s head. Accordi.ng. to C.M., the

intruder forced him to lay on top of Bowers, and K.M. to lay on top of him, such that they

were stacked three people high while the assailant held the gun on them. The male

assailant ransacked the basement, and a female intruder joined him at one point. In

addition to stealing his cell phone, C.M. confirmed that the intruders stole the basement

TV. C.M. testified they heard sirens and the intruders left.

{¶ 121- K.M. testified she was in the basement with C.M. and Bowers. She stated

that a masked man descended into the basement carrying an AK-47. He forced her to the

floor, put his foot on her head, and put the gun in her back. The intruder then forced her

and C.M. to lay on top of Bowers while holding the gun on them. She thought he was

going to shoot all three of them at the same time. According to K.M., the intruder said,

"Where's the settlement? * * * Where's the money?" (Tr. Vol. II, 356.) The male intruder

ransacked the basement. At one point a female intruder joined him downstairs, consulted

with the male, and verbally abused the occupants. K.M. testified the intruders stole her

cell phone and left her, C.M., and Bowers stacked up when they fled.

{¶ 13} Perdue was sitting on the couch in the front room, on the first floor, holding

her three-month-old daughter, J.B. She testified that an intruder came into the room and

0A107 - H8

toMhOOflace)

anINN

^

004

:30v0Ya^c^y

t0

^.CL

0

0U

0wc0

0U

^LL

No. 13AP-735 5

told her not to move, but allowed her to remain sitting upright. Perdue heard Collins

address appellant as "Erik," while appellant had Collins on the floor in the kitchen. (Tr.

Vol. II, 419.) She also heard appellant ask Collins, "Where's your settlement?" (Tr. Vol.

II, 367.) According to Perdue, appellant then entered and searched the room where she

was sitting. She saw appellant's face and described him for the jury: "Whi.te male, bald

head, * * * reddish-colored beard [on his chin]." (Tr. Vol. II, 367-68.) She testified

appellant was carrying a silver revolver. Later, she saw appellant carry a TV from a

bedroom out the front door. Perdue saw two additional male intruders and one female

intruder wearing masks. They ransacked other parts of the house and removed items

from the residence. She witnessed the robbers exit the house, and she called police.

Perdue estimated the event lasted 25-30 minutes.

{¶ 14} The Columbus Police Department responded to the incident, and three

police officers testified for the state at trial. The first responder, Officer Mary Praither,

testified she was dispatched to a reported home invasion at 9o9 Lawndale Avenue on

October 28, 2012. V^rhen she arrived, she observed the house to be in disarray and the

occupants to be shaking and scared. She noted a TV was missing from a stand in the front

room and the bedrooms were ransacked. Detective Brian Boesch testified Collins told

him appellant was one of the perpetrators. Collins told Detective Boesch that he knew

appellant, appellant was not wearing a mask, and he provided Detective Boesch with

appellant's first name. Collins described appellant as a bald, white male, with a long

goatee. Others were interviewed, and with the information collected, Detective Boesch

put together photo arrays. Detective Boesch testified that a particular photo array

contained six pictures of white males, with goatees, who were either bald or had closely

cut hair. On November 5, 2012, Detective Todd Cress testified he brought two copies of

that photo array to Collins' house. Detective Cress showed the photo array to Collins and

Perdue separately, and they both selected appellant's picture indicating he entered their

home with a gun and robbed them.

{¶ 15} Appellant did not call any witnesses to testify at trial. Appellant's co-

defendant called one witness, but that witness admitted he liad no firsthand knowledge

regarding the events of October 28, 2012. Appellant's co-defendant also testified on her

own behalf and denied being involved in the incident. The parties stipulated, in relation

- 0A10 7 - H9

No. 13AP-7/35 6

to the having weapons while under disability charge, that appellant was previously

convicted of burglary, a felony offense of violence, in 2012.

{¶ 16} Appellant was convicted of aggravated burglary, having weapons while

under disability, and multiple counts of aggravated robbery, robbery and kidnapping,

with each containing specifications. On July 26, 2013, the trial court filed a judgment

entry memorializing appellant's sentence. On August 23, 2013, appellant appealed to this

court.

fT 171 On March 5, 2014, the state f 3led a motion for leave to supplement the

appellate record with: (1) the state's January 16, 2014 motion to correct the trial court

record, (2) the transcript of the proceedings before the trial court regarding that motion,

and (3) the trial court's March 4, 2012 entry jotzrnalizing those proceedings. The state's

motion was unopposed. We granted the same on March 18, 2014, after which the

appellate record was supplemented.

II. ASSIGNMENTS OF ERROR

{^ 18} Appellant presents this court with the following assignments of error to

review:

1. THE TRIAL COURT ERRED AND DEPRIVEDAPPELLANT OF DUE PROCESS OF LAW AS GUARANTEEDBY THE FOURTEENTH AMENDMENT TO THE UNITEDSTXTES CONSTITUTION AND ARTICLE ONE SECTIONTEN OF THE OHIO CONSTITUTION BY FINDING HIMGUILTY OF AGGRAVATED BURGLARY; AGGRAVATEDROBBERY; KIDNAPPING AND I-IAVING WEAPONSUNDER DISABILITY AS THOSE VERDICTS WERE NOTSUPPORTED BY SUFFICIENT EVIDENCE AND WEREALSO AGAINST THE MANNIFEST WEIGHT OF THEEVIDENCE.

II. THE TRIAL COIJRT ERRED TO THE PREJUDICE OFAPPELLANT BY IMPROPERLY SENTENCING HIM TOCONSECL'TIVE TERMS OF INCARCERATION INCOiNIRAVENTION OF OHIO'S SENTENCING STATLJTES.

III. APPELLAI^^'I' WAS DEPRIVED OF HIS RIGHT TO BEPRESENT AND TO THE PRESENCE AND ASSISTANCE OFHIS COUNSEL DURING A CRITICAL STAGE OF HIS JURYTRIAL, AND HIS RIGHT TO DUE PROCESS AND AFUNDAiNIENTALLY FAIR JURY TRIAL AS REQUIRED BY

OA107 - H10

No. 13AP-735 7

THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND ARTICLEONE SECTIONS FIVE, TEN AND SIXTEEN OF THE OHIOCONSTITUTION AND CRIMINAL RULE 43(A).

Incnr.0®a"

aN

N

C)

>,co2

0N

0v019vU^va.

0

m0c>0

0

0UE

U-

III. DISCUSSION

{¶ 19} Under appellant's first assignment of error, he asserts his convictions were

not supported by sufficient evidence and that his convictions were against the manifest

weight of the evidence produced at trial. Appellant focuses on the testiniony of Collins.

Appellant characterizes Collins as a man of "dubious character"; a convicted felon who

was still engaging in criminal activity at the time of the October 28, 2012 incident.

(Appellant's brief, at 2.) Collins identified appellant as the unmasked perpetrator. Thus,

according to appellant, the state's "identification was based on the testimony of a

convicted and unreformed felon. Collins' testimony #** was suspect and not worthy of

belief by any rational jury." (Appellant's brief, at 4.) Based on these contentions, it is

appellant's stance that the state failed to sustain its burden of proof at trial. We disagree.

{¶ 20} "Sufficiency of the evidence is a legal standard that tests whether the

evidence introduced at trial is legally suffrcient to support a verdict." State v. Cassell,loth

Dist. No. o8AP-1o93, 2olo-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d

380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate

court must determine "whether, after viewing the evidence in a light most favorable to the

prosecution, ariy rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

bwro of the syllabus, superseded by constitutional amendment on other grounds as

recognized in State v. Smith, 8o Ohio St.3d 89, 102 (1997).

{¶ 21} "While sufficiency of the evidence is a test of adequacy regarding whether

the evidence is legally sufficient to support the verdict as a matter of law, the criminal

manifest weight of the evidence standard addresses the evidence's effect of inducing

belief." Cassell at ¶ 38, citing State v. T^ilson, 113 Ohio St.3d 382, 2007-Ohi0-2202, ¶ 25,

citing Thorrzpkins at 386-87. "When a court of appeals reverses a judgment of a trial court

on the basis that the verdict is against the weight of the evidence, the appellate court sits

as a'thir-teenth juror' and disagrees j.,Ath the factfinder's resolution of the conflicting

OAI07 H11

LO0®0

r

an

^

^.

®N

0c^0

c^c^0coa)a

0

0v®^0^

0u^-Yc

No. 13AP-735 8

testimony." Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). "'The

court, reviewing the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.' " Id., quoting State v.Martin, 20 Ohio App.3d 172, 175 (lst Dist.1983). This discretionary authority "'should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.' " Id., quoting Martin at 175.

{^ 22) Appellant's argument under his first assignment of error is that the jury

ahould not have acceptcd Collins' identification of appellant because Collins was not

credible. Appellant's argument ignores the other identification evidence produced at trial.

Additionally, the argument lacks merit. Collins' criminal history was disclosed to the jury

and the jury was aware of his prior dealings with appellant. Whether or not to believe

Collins was well within the purview of the jury. "As the finder of fact, the jury is in the

best position to weigh the credibility of testimony by assessing the demeanor of the

witness and the manner in which he testifies, his connection or relationship with the

parties, and his interest, if any, in the outcome." State v. Moore, loth Dist. No. IlAP-1116,

2013-Ohio-3365, ¶ lo. The jury was free to accept all, a part, or none of Collins'

testimony. Id.; State v. Vasquez, ioth Dist. No. 13AP-366, 2o14-Ohio-224, ¶ 57, citingState v. Matthews, ioth Dist. No. 11AP-532, 2012-Ohio-1154, ¶ 46 ("As trier of fact, the

jury was free to believe or disbelieve all or any of the testimony presented.").

{¶ 23) After considering appellant's argument and reviewing the entire record, we

determine a rational jury could have found the essential elements of the crimes proven

beyond a reasonable doubt. We do not find the evidence weighs heavily against

appellant's convictions, the jury clearly lost its way, or a manifest miscarriage of justice

occurred. The jury was in the best position to determine the credibility of the testimony

presented, and we decline to substitute our judgment for that of the jury. Accordingly,

appellant's first assignment of error is overruled.

{¶ 24 f Under appellant's second assignmerit of error, he argues the trial court

erred by not complying with statutory mandates governing the imposition of consecutive

sentences. Specifically, appellant contends the trial court failed to comply with R.C.

oA107 - H12

No. r3A,P-735 9

2929•14(C)(4) before imposing consecutive sentences because the court did not find "that

consecutive sentences are not disproportionate to the seriousness of the offender's

conduct and to the danger the offender poses to the public." R.C. 2929.14(C)(4). Our

review of the record indicates otherwise.

{¶ 25} Preliminarily, we note appellant did not object to his sentence; thus, he has^®00a

atiNr

^.2tt®CN

0v0

G1U^co4)aa

0

0L®0^

0

^

LL

forfeited all but plain error. See Crim.R. 52(B); State v. Wilson, roth Dist. No. Y2AP-551,

2o13-Ohio-1520, ¶ 8. Under Crim.R. 52(B), "[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court." ??To

constitute plain error, the error must be obvious on the record, palpable, and fundamental

such that it should have been apparent to the trial court without objection." State v.Gullick, loth Dist. No. 13AP-26, 2013-Ohio-3342, i1 3, citing State v. Tichon, 102 Ohio

APP•3d 758, 767 (9th Dist.1995). We notice plain error "'with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.' " Statev. Barnes, 94 Ohio St.3d 21, 27 (2002), quoting State v. Long, 53 Ohio St.2d 91 (1978),

paragraph three of the syllabus. "The burden of demonstrating plain error is on the party

asserting it." State v. Payne, 114 Ohio St.3d 602, 2007-Ohio-4642, ¶ 17.

{^ 26} Generally, we review felony sentences to determine " 'whether clear and

convincing evidence establishes that a felony sentence is contrary to law.'" State v. Ayers,

ioth Dist. No. 13AP-371, 2014-Ohio-276, T 8, quoting State u. Allen, ioth Dist. No. 1oAP-

487, 2011-Ohio-i767, ¶ 19. "A sentence is contrary to law `vhen the trial court failed to

apply the appropriate statutory guidelines." Id., citing State v. Burton, ioth Dist. No.o6AP-69o, 2007-Ohio-1941, 119.

{¶ 27} R.C. 2929•14(C)(4) provides:

If multiple prison terms are imposed on an offender forconvictions of multiple offenses, the court may require theoffender to serve the prison terms consecutively if the courtfinds that the consecutive service is necessary to protect thepublic from future crime or to punish the offender and thatconsecutive sentences are not disproportionate to theseriousness of the offender's conduct and to the danger theoffender poses to the public, and if the court also finds any ofthe following:

OA107 - H13

No. 13AP-735

(a) The offender committed one or more of the multipleoffenses while the offender was awaiting trial or sentencing,was Lulder a sanction imposed pursuant to section 2929.16,2929.17, or 2929.1.8 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed aspart of one or more courses of conduct, and the harm causedby two or more of the multiple offenses so committed was sogreat or unusual that no single pri.son term for any of theoffenses committed as part of any of the courses of conductadequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstratesthat consecutive sentences are necessary to protect the publicfrom future crime by the offender.

10

{¶ 28) R.C. 2929.14(C)(4) requires the trial court to make three findings before

imposing consecutive sentences: (z) that consecutive sentences are necessary to protect

the public from future crime or to punish the offender, (2) 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 (3) that one of the subsections (a), (b), or (c) apply.

State v. Roush, loth Dist. No. 12AP-201, 2018-Ohio-3162, ¶76. "The trial court is not

required to give reasons explaining these findings, nor is the court required to recite any

'magic' or 'talismanic' words when imposing consecutive sentences." Id., citing State v.Farnsworth, 7th Dist. No. 12 CO 10, 2013-Ohio-1275, ¶ 8. "Nevertheless, the record must

reflect that the court made the findings required by the statute." Id.

{¶ 291 During sentencing, the trial court made the following pertinent remarks:

Quite frankly, 2929.14 of the Ohio Revised Code's a littleawkward at times with some of its verbiage, so I think tliat'simportant in finding that consecutive sentences areappropriate here. I need to talk a little bit about some issueshere.

First, there is no doubt that he was on probation when theseoffenses occurred, being one of the factors under 2929.14.Whether he was on Federal parole is basically secondary. Hestill was under paper to me, being one of the qualifiers. Ithink it's important to note that on the record.

oA1o? - H14

No. 13AP-735

Also, to not give consecutive sentences would demean theseriousness of the offense based upon the weighing of thefactors that are involved here. The harm was so great that asingle term does not adequately reflect the seriousness of theconduct, and his criminal history shows that consecutivesentences are needed to protect the public, and that's the bigissue here.

^ ^-

The sentence I give today I feel is appropriate to protect thepublic, but if I had all the specifications, then I think it wouldbe disproportionate to the needs of the public, so that's why Ihave had the State elect on the gun specs of Count 1 and 3.

(Tr. Vol. V, 1009-10.)

11

{¶ 30} The trial court made all the findings required by R.C. 2929.14(C)(4). There

is no dispute over whether the trial court found consecutive sentences were necessary to

protect the public from future crime or to punish appellant, or whether the trial court

found that one of the subsections (a), (b), or (c) applied. We find the record reflects those

findings were made. Appellant's only complaint is that the court neglected to find that

consecutive sentences were not disproportionate to the seriousness of his conduct and to

the danger he poses to the public. We disagree. The trial court specifically discussed the

proportionality of appellant's sentence, finding it was not disproportionate under the

circumstances. The court further identified as sentencing factors appellant's criminal

history, the seriousness of his offenses, the great harm he caused, and the need to protect

the public. It is clear the trial court found appellant was a danger to the public without

saying the word "danger."

{^ 31} We are reminded that a trial court is not required to use talismanic words in

order to comply with R.C. 2929.14(C)(4). However, it must be clear from the record that

the findings required by the statute were made. State v. Revels, ioth Dist. No. 12AP-

831, 2014-Ohio-796, ¶ 1o, citing State v. Boynton, ioth Dist. No. 12AP-975, 2013-Ohio-

3794, ¶ 9; State v. Marton., 8th Dist. No. 99253, 2013-Ohio-3430, ¶ 13; Roush at ¶ 76. In

this case, we find the record clearly reflects the trial court made all the required findings

under R.C. 2929.14(C)(4) before imposing consecutive sentences.

OA107 - H15

LO0OQ

T

2a.tiN

T

czn

0N

0^®

c^^

c^.

0i

0t)®0

0c'

^

No. z3AP-735 12

{¶ 32} Appellant also asserts under his second assignment of error that "the lack of

reasons cited bv the trial court in imposing consecutive sentences" amounts to error.

(Appellant's brief, at ro.) We disagree. We have previously considered and rejected the

notion that a trial court must provide reasons for imposing consecutive sentences, in

addition to making the findings required by R.C. 2929.14(C)(4). State v. Wilson, 2013-

Ohio-1-20, ¶ 19; see also Roush at ¶76. Appellant also makes vague claims such as "the

trial court sentenced [him] to consecutive sentences * * * without appropriate

justification," and, "[s]imply stated, the record in this case does not justify the trial court's

sentence." (Appellant's brief, at 5-6; 7.) We cannot agree. Appellant was convicted for

committing nwnerous violent felonies and, as explained above, the trial court complied

with R.C. 292-9.14(C)(4) before imposing consecutive sentences. We do not find a

departure from statutory guidelines or otherwise notice plain error in appellant's

sentence. Accordingly, appellant's second assignment of error is overruled.

{^( 33} Under appellant's third assignment of error, he argues that error occurred

because he was not present during a critical portion of his trial in contravention of his

rights. Appellant relies on the fact that the record originally certified to this court does

not indicate whether he was present in the courtroom, at a particular point, when the trial

court addressed the jtuy while the jury was deliberating.

{¶ 34} The state responded by filing a motion to correct the record with the trial

court pursuant to App.R. 9(E). The trial court held a hearing on the motion, at which

appellant was present. The proceeding was held before the same judge that presided over

appellant's trial and addressed the jury. The judge heard from appellant's trial counsel,

his appellate counsel, the assistant prosecutor that represented the state at trial, and the

assistant prosecutor representing the state on appeal. The clerk of courts supplemented

this court's record with a transcript of the motion hearing.

{¶ 351 Most notably, appellant's trial counsel stated during the hearing:

Your Honor, [appellant] was present during the HowardCharge. We had discussions. I think the record will reflectthat I had spoken with [appellant] in terms of objecting to theHoward Charge.

F oA107 - H16

C)C)0a

r

a.r-^NC14Cl)r^a

®C14

:30v0

UNco(DaQ

0i3O^

C_3L0^

Q^C_

YCcC

ll.

No. 13AP-735 :13

(Mar. 3, 2014 Tr. 6.), Additionally, the consensus between the trial judge and the

assistant prosecutor that represented the state at trial was that appellant was present at

the time in question. The trial court granted the state's motion and found, "[i]nsofar as

the State seeks clarification of whether [appellant] was present in the courtroom[,] * * *

this Court finds that [appellant] was present in the courtroom." (Mar. 4, 2014 Judgment

Entry.)

{¶ 36} We find the above proceedings conducted pursuant to App.R. g(E) render

appellant's third assignment of error meritless. Accordingly, appellant's third assigziment

of error is overruled.

IV. CONCLUSION

{^ 37} Having overruled appellant's three assignments of error, the judgment of

the Franklin County Court of Common Pleas is affirmed.

Judgment afflrmed.

BROWN and DORRIAN, JJ., concur.

1A discussion of the "Howard Charge" referred to by appellant's trial counsel is not necessary for theresolution of appellant's third assignment of error. Thus, in the interest of brevity, this court will notelaborate. See State v. Howard, 42 Ohio St.3d 1.8 (1989).

OAl0s - F45

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATF, DISTRICT

State of Ohio,

Plaintiff-Appellee,

LOrnn®0®acn

cr)®0

cz2r®N

0v®

QS

UCO6Sfa1dt].

0

0C)

O_

0Z,c70Uc_

c

LL

V.

Erik D. Zonars,

Defendant-Appellant

No. 13AP-735(C.P.C. No. 12CR-5831)

(REGUIAR CALENDAR)

JUDGME-NT ENTRY

For the reasons stated in the decision of this court rendered herein on

May 13, 2014, appellant's three assignments of error are overruled. It is the judgment and

order of this court that the judgment of the Franklin County Court of Common Pleas is

affirmed. Costs assessed to appellant.

O'GRADY, BROWN & DORRIAN, JJ.

By /S/ JUDGEJudge Amy O'Grady

, 0A108 - F46

Tenth District Court of Appeals

Date:

Case Title:

Case Number:

Type:

05-20-2014

STATE OF OHIO -VS- ERIK D ZONARS

13AP000735

JEJ - JUDGMENT ENTRY

So Ordered

/s/ Amy C. O'Grady

E4eclronically signed on 2014-May-20 page 2 of 2

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jul 26 3:33 PM-12CR0058310A037 - F43

IN THE COURT OF COMMON PLEAS, FRANKLIN COUN T Y, OHIOCRIMINAL DIVISION

STATE OF OHIO,

Plaintiff,

V.

ERIK D. ZONARS,

Case No. 12CR-5831

Judge HOLBROOK

Defendant.

JUDGMENT ENTRY(Prison Imposed)

On April 25, 2013, the State of Ohio was represented by Assistant ProsecutingAttorney David Zeyen and the Defendant was represented by Attorney Larry Thomas.The case was tried by a jury which returned a verdict on April 29, 2013, finding theDefendant GUILTY of t:he following:

Count One of the Indictment, to wit: AGGRAVATED BURLGARY, WITHSPECIFICATION, in violation of Section 2911.11 of the Ohio Revised Code, being aFelony of the First Degree;

Count Three of the Indictment, to wit: AGGRAVATED ROBBERY, WITHSPECIFICATION, in violation of Section 2911.01 of the Ohio Revised Code, being aFelony of the First Degree;

Count Five of the Indictment, to wit: AGGRAVATED ROBBERY, WITHSPECIFICATION, in violation of Section 2911.01 of the Ohio Revised Code, being aFelony of the First Degree;

Count Seven of the Indictment, to wit: AGGRAVATED ROBBERY, WITHSPECIFICATION, in violation of Section 2911.01 of the Ohio Revised Code, being aFelony of the First Degree;

Count Nine of the Indictment, to wit: AGGRAVATED ROBBERY, WITHSPECIFICATION, in violation of Sectiori 2911.01 of the Ohio Revised Code, being aFelony of the First Degree;

Count Eleven of the Indictment, to wit: AGGRAVATED ROBBERY, WITHSPECIFICATION, in violation of Section 2911.01 of the Ohio Revised Code, beirig aFelony of the First Degree;

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jul 26 3:33 PM-12CRaQ6831OA037 - "F44

Count Thirteen of the Indictment, to wit: AGGRAVATED ROBBERY, WITHSPECIFICATION, in violation of Section 2911.01 of the Ohio Revised Code, being aFelony of the First Degree;

Count Fifteen of the Indictment, to wit: ROBBERY, WITH SPECIFICATION, in violationof Section 2911.02 of the Ohio Revised Code, being a Felony of the Second Degree;

Count Seventeen of the Indictment, to wit: ROBBERY, WITH SPECIFICATION, inviolation of Section 2911.02 of the Ohio Revised Code, being a Felony of the SecondDegree;

Count Nineteen of the Indictment, to wit: ROBBERY, WITH SPECIFICATION, inviolation of Section 2911.02 of the Ohio Revised Code, being a Felony of the SecondDegree;

Count Twenty-One of the Indictment, to wit: ROBBERY, WITH SPECIFICATION, inviolation of Section 2911.02 of the Ohio Revised Code, being a Felony of the SecondDegree;

Count Twenty-Three of the Indictment, to wit: ROBBERY, WITH SPECIFICATION, inviolation of Section 2911.02 of the Ohio Revised Code, being a Felony of the SecondDegree;

Count Twenty-Five of the Indictment, to wit: ROBBERY, WITH SPECIFICATION, inviolation of Section 2911.02 of the Ohio Revised Code, being a Felony of the SecondDegree;

Count Twenty-Seven of the Indictment, to wit: ROBBERY, WITH SPECIFICATION, inviolation of Section 2911.02 of the Ohio Revised Code, being a Felony of the ThirdDegree;

Count Twenty-Nine of the Indictment, to wit: ROBBERY, WITH SPECIFICATION, inviolation of Section 2911.02 of the Ohio Revised Code, being a Felony of the ThirdDegree;

Count Thirty-Oneviolation of SectionDegree;

of the Indictment, to wit: ROBBERY, WITH SPECIFICATION, in2911.02 of the Ohio Revised Code, being a Felony of the Third

Count Thirty-Three of the Indictment, to wit: KIDNAPPING, WITH SPECIFICATION, inviolation of Section 2905.01 of the Ohio Revised Code, being a Felony of the First Degree;

Count Thirty-Five of the Indictment, to wit: KIDNAPPING, WITH SPECIFICATION, inviolation of Section 2905.01 of the Ohio Revised Code, being a Felony of the First Degree;

Franklin County O hio Clerk of Courts of the Common Pleas- 2013 Jul 26 3:33 PM-12CR005831oA037 - F45

Count Thirty-Seven of the Indictment, to wit: KIDNAPPING, WITH SPECIFICATION, inviolation of Section 2905.01 of the Ohio Revised Code, being a Felony of the First Degree;

Count Thirty-Nine of the Indictment, to wit: KIDNAPPING, WITH SPECIFICATION, inviolation of Section 2905.01 of the Ohio Revised Code, being a Felony of the First Degree;

Count Forty-One of the Indictment, to wit: KIDNAPPING, WITH SPECIFICATION, inviolation of Section 2905.01 of the Ohio Revised Code, being a Felony of the First Degree;

Count Forty-Three of the Indictment, to wit: KIDNAPPING, WITH SPECIFICATION, inviolation ^.. Section onG ^+^-", l^i^^^ Revised r'"Cl®, ^.,h°i`lg a FnPnnyti of the First rlAryrev•vi^vict^f u2JC' J.t^^ f of u ic vi ^iv i\ cJisc.^. vv ^.^,,, ,,," ,_,^,

and Count Forty-Five of the Indictment, to wit: HAVING WEAPON WHILE UNDERDISABILITY, in violation of Section 2923.13 of the Ohio Revised Code, being a Felony ofthe Third Degree.

Prior to trial and upon application of the Assistant Prosecuting Attorney, and forgood cause shown, it is hereby ORDERED that a nolle prosequi be entered for COUNTSTWENTY-EIGHT, THIRTY and THIRTY-TWO of the Indictment. Counts 2, 4, 6, 8, 10, 12,14, 16, 18, 20, 22, 24, 26, 34, 36, 38, 40, 42, and 44 pertain to co-defendant only. Forpurposes of sentencing, Count Thirty-Three was renumbered as Count Twenty-Seven;Count Thirty-Five was renumbered as Count Twenty-Nine; Count Thirty-Seven wasrenumbered as Count Thirty-One; Count Thirty Nine was renumbered as Count Thirty-Three; Count Forty-Orie was renumbered as Count Thirty-Five; Count Forty-Three wasrenumbered as Count Thirty-Seven; and Count Forty-Five was renumbered as CountThirty-Nine. Also, for purposes of sentencing, Counts Fifteen and Twenty-Sevenrnerged with Count Three; Counts Seventeen and Twenty-Nine merged with CountFive; Counts NineteerP and Thirty-One merged with Count Seven; Counts Twenty-Oneand Thirty-Three merged with Count Nine; Counts Twenty-Three and Thirty-Fivemerged with Count Eleven; Counts Twenty-Five and Thirty-Seven merged with CountThirteen. Further, Specifications on Counts 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35,37, 39, 41, and 43 all merge.

The Defendant on July 8, 2013, was informed of the aforestated verdict and hisappellate review rights pursuant to Crim. R. 32.

On July 8, 2013, a sentencing hearing was held pursuant to R.C. 2929.19. TheState of Ohio was represented by Assistant Prosecuting Attorney David Zeyen, and theDefendant was represented by attorney Larry Thomas.

The Court afforded counsel an opportunity to speak on behalf of the Defendant andaddressed the Defendant personally affording him an opportunity to make a statement onhis own behalf in the form of mitigation and to present information regarding the existenceor non-existence of the factors the Court has considered and weighed.

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jul 26 3:33 PM-12CR0o58310A037 - F46

The Court has considered the purposes and principles of sentencing set forth inR.C. 2929.11 and the factors set forth in R.C. 2929.12. In addition, the Court has weighedthe factors as set forth in the applicable provisions of R.C. 2929.13 and R.C. 2929.14. TheCourt further finds that a prison term is mandatory pursuant to R.C. 2929.13(F).

The Court hereby imposes the following sentence: ELEVEN (11) YEARS as toCount One with a mandatory THREE (3) YEARS of actual incarceration for thespecification on Count One; FIVE (5) YEARS as to Count Three with a mandatoryTHREE (3) YEARS of actual incarceration for the specification on Count Three;FIVE (5) YEARS as to Count Five with a mandatory THREE (3) YEARS of actual

4'„" ^,.r 46. F^ ^e"" ""' f'^"n+ C^„"• ^r"E f51 YEARS .^.... to CountIn4alLelalrVll lv^ ^^fE' ape^.i^i^.a^^v11 vr^ vvuu^ pw..., FIVE ^^ .

Seven with a mandatory THREE (3) YEARS of actual incarceration for thespecification on Count Seven; FIVE (5) YEARS as to Count Nine with a mandatoryTHREE (3) YEARS of actual incarceration for the specification on Count Nine;FIVE (5) YEARS as to Count Eleven with a mandatory THREE (3) YEARS of actualincarceration for the specification on Count Eleven; FIVE (5) YEARS as to CountThirteen with a mandatory THREE (3) YEARS of actual incarceration for thespecification on Count Thirteen; THREE (3) YEARS as to Count Thirty-Nine; plusa MANDATORY consecutive ONE (1) YEAR of actual incarceration as a RepeatViolent Offender (RVO). Counts One, Three, Five, Seven, Nine, Eleven, Thirteen tobe served consecutively to each other; consecutively to the firearm specificationon Count One; consecutively to the firearm specification on Count Three; andconsecutively to the Repeat Violent Offender ( RVO); but concurrently with CountThirty-Nine, concurrently with the Specifi:cations on Counts Five, Seven, Nine,Eleven and Thirteen, and concurrently with Case Nos. IICR-6656 and 12CR-5830at the OHIO DEPARI"MENT OF REHABILITATION AND CORRECTIONS for a totalof FORTY-EIGHT (48) YEARS.

After imposing sentence, the Court stated its reasons as required by R.C.2929.19. The Court notified the Defendant that he may be eligible to earn credit while inprison but that the credit is not automatic and may not be applicable for the offense forwhich the defendant was sentenced.

The Court notified the Defendant pursuant to R.C. 2929.19(B)(3) that the applicableperiod of post-release control is five (5) years mandatory.

The Court has considered the Defendant's present and future ability to pay a fineand financial sanction and does, pursuant to R.C. 2929.18, hereby render judgment forthe following fine aridfor financial sanctions: No fine imposed. Defendant shall paycourt costs in an amount to be determined.

The total fine and financial sanction judgment is $0 plus costs.

The Defendant was notified of the Ohio Department of Rehabilitation andCorrection's Shock Irrcarceration Programs and Post Release Control in writing andorally.

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jul 26 3:33 PM-12CR005$31OA037 - F47

The Court DISAPPROVES of the Offender's placement in an intensive prisonprograr» or transitional control.

The Court finds that the Defendant has zero (0) days of jail credit and herebycertifies the time to the Ohio Department of Corrections. The Defendant is to receive jailtime credit for all additional jail time served while awaiting transportation to the institutionfrom the date of the imposition of this sentence.

cc: David Zeyen, Assistant Prosecuting AttorneyLarry Thomas, Counsel for Defendant