State v. Smith , 2021 Ohio 1562 ( 2021 )

[Cite as State v. Smith, 2021-Ohio-1562.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
NATHANIEL SMITH : Case No. 2020CA61
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2019CR514
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 3, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAULA M. SAWYERS JAMES A. ANZELMO
20 South Second Street 446 Howland Drive
Fourth Floor Gahanna, OH 43230
Newark, OH 43055
Licking County, Case No. 2020CA61 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Nathaniel Smith appeals the August 31, 2020
judgment of the Licking County Court of Common Pleas which reflects Smith's
resentencing upon remand from this court. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} A recitation of the underlying facts is unnecessary to our resolution of this
appeal.
{¶ 3} On August 12, 2020 we issued our opinion in Smith's first appeal, State v.
Smith, Licking App. No. 2019CA119, 2020-Ohio-4048, which we affirmed in part and
reversed in part. We reversed Smith's sentence because during his sentencing hearing,
the trial court failed to make the findings mandated by R.C. Section 2929.14(C)(4) before
imposing consecutive sentences and to incorporate those findings into its sentencing
entry. Id. ¶¶ 46-47.
{¶ 4} The matter was remanded for a new sentencing hearing which took place
on August 31, 2020. The trial court sentenced Smith as follows:
So, at this time, I would say that the court would impose terms of two
years in the state penitentiary on Count No. 1, two years on the state
penitentiary on Count No. 2, and a six-month sentence on Count No.
3. I'd order that Counts 1 and 2 run consecutively with each other
and concurrently with Count No. 3 for a four-year term.
I'd find consecutive sentences are necessary to protect the public,
punish the Defendant, not disproportionate to the crimes he's
Licking County, Case No. 2020CA61 3
committed or others imposed on others for similar conduct. And I'd
find that they're necessitated by his criminal history * * *.
{¶ 5} Transcript of resentencing (T.) at 10.
{¶ 6} The trial court then discussed Smith's lengthy criminal history which began
in 1997. T. 10-11.
{¶ 7} The trial court's August 31, 2020 sentencing judgment entry states in
relevant part:
It is, therefore, ordered that the Defendant serve a stated prison term
of two (2) years on Count one and two (2) years on Count 2 at the
Orient Reception Center. Further, the Court imposes a term of six
months in jail on count 3. Counts 1 and 2 are ordered to run
consecutively with each other and concurrently with count 3 for an
aggregate term of four (4) years.
The Court has decided that the offender shall serve the prison terms
consecutively, pursuant to R.C. 2929.14(C)(4), because the Court
finds that the consecutive sentences are 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 the Court also finds the following:
Licking County, Case No. 2020CA61 4
The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
***
{¶ 8} Smith filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error:
I
{¶ 9} "THE TRIAL COURT UNLAWFULLY ORDERED SMITH TO SERVE
CONSECUTIVE SENTENCES, IN VIOLATION OH HIS RIGHTS TO DUE PROCESS,
GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION."
{¶ 10} In his sole assignment of error, Smith argues his consecutive sentences
must be vacated because the trial court imposed the sentences in contravention of the
sentencing statutes. We disagree.
{¶ 11} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.
R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a
sentence and remand for resentencing where we clearly and convincingly find that either
the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
{¶ 12} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Licking County, Case No. 2020CA61 5
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. “Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161
Ohio St. at 477, 120 N.E.2d 118.
{¶ 13} “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, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, syllabus. “[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.” Id. at ¶ 29.
{¶ 14} We first note Smith concedes the trial court made the findings mandated by
R.C. 2929.14(C)(4). Appellant's brief at 4. He argues, however, that consecutive
sentences are reserved for the most serious offenses and offenders and that the record
here fails to support a conclusion that he committed the most serious offense or is among
the most serious offenders. Smith further argues consecutive sentences are not
warranted because he has suffered several deaths in his family over the past year and
because he needs to be with his 72-year-old mother.
{¶ 15} In support of his arguments, Smith states he was not armed during the
instant offenses which consisted of one count each of domestic violence against his wife
and daughter, and a count of aggravated menacing against a neighbor who attempted to
Licking County, Case No. 2020CA61 6
help the women. The offenses involved Smith running out of his house cursing and
screaming at his wife. When his daughter got in his way, he picked her up, threw her
around, and struck her in the face. As Smith cocked his fist to assault his wife, a neighbor
drove up to the scene and asked Smith to calm down. Smith asked the neighbor if he
wanted to fight and then threatened to shoot him in the face. State v. Smith, Licking App.
No. 2019CA119, 2020-Ohio-4048, ¶¶ 5-6. Smith argues he is not the worst offender and
did not commit the worst form of the offense because these events did not alarm his wife
and daughter and neither suffered serious injury. These events, however, constitute
Smith's third case of domestic violence. Id. ¶ 8.
{¶ 16} Smith further ignores the trial court's discussion of his extensive prior record
during the resentencing hearing. The court noted Smith's criminal history began in 1994
with murder, continued to the present and includes convictions for felon in possession of
a firearm in 1996 and 2004, drug possession in 2000, manufacturing and delivering a
controlled substance in 2002 and 2004, resisting an officer during service of process,
criminal sexual conduct, fraudulent activity, accosting children for immoral purpose and
domestic violence in 2008, domestic violence for knowingly assaulting a pregnant woman
in 2009, and abduction, assault and menacing in 2010. Several of these charges resulted
in incarceration. T. 10-11.
{¶ 17} We find that the trial court made the appropriate findings before imposing
consecutive sentences. We further find the record supports the trial court's conclusion
that in light of the nature of the instant offense and Smith's criminal history, Smith's
conduct demonstrates consecutive sentences are necessary to protect the public from
Licking County, Case No. 2020CA61 7
future crime by Smith and to punish Smith. Accordingly, we clearly and convincingly find
that the record supports the sentence, and that the sentence is not contrary to law.
{¶ 18} The sole assignment of error is overruled.
{¶ 19} The judgment of the Licking County Court of Common Pleas is affirmed.
By Wise, Earle, J.
Wise, John, P.J. and
Delaney, J. concur.
EEW/rw