State v. Johnson , 2021 Ohio 2254 ( 2021 )

[Cite as State v. Johnson, 2021-Ohio-2254.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-20-033
Appellee Trial Court No. 19 CR 706
v.
Timothy E. Johnson DECISION AND JUDGMENT
Appellant Decided: June 30, 2021
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.
Loretta Riddle, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Timothy E. Johnson, appeals the judgment entered by the
Sandusky County Common Pleas Court on July 21, 2020, sentencing him to serve a
mandatory prison term of four years, to run consecutively with his sentence in Sandusky
County Common Pleas Court Case No. 18 CR 1228. For the reasons that follow, we
affirm the judgment of the trial court, but remand the matter remand so the trial court can
amend its sentencing entry via a nunc pro tunc order to include the trial court’s
consecutive sentence findings.
{¶ 2} Appellant sets forth the following sole assignment of error:
I. The trial court erred by sentencing appellant to consecutive prison
terms without making the necessary findings.
Statement of the Case and Facts
{¶ 3} Appellant was indicted on July 26, 2019, on one count of involuntary
manslaughter, in violation of R.C. 2903.04(A), a felony of the first degree; one count of
corrupting another with drugs, in violation of R.C. 2925.02(A)(3), a felony of the second
degree; one count of trafficking in heroin, in violation of R.C. 2925.03(A)(1)(C)(6)(a), a
felony of the fifth degree; and one count of trafficking in a fentanyl related compound, in
violation of R.C. 2925.03(A)(1)(C)(9)(a), a felony of the fifth degree.
{¶ 4} Appellant was indicted in connection with an incident that took place on
November 26, 2017, where appellant sold the victim a fentanyl and heroin mixture that
resulted in the victim’s death.
{¶ 5} At a hearing held on February 12, 2020, appellant pleaded guilty to
corrupting another with drugs, in violation of R.C. 2925.02(A)(3), a felony of the second
degree. The trial court accepted appellant’s plea and referred the matter to adult
probation for the completion of a presentence investigation.
2.
{¶ 6} Appellant’s sentencing hearing took place on July 21, 2020. At that time,
appellant was already serving 24 months in prison, in Sandusky County Common Pleas
Court case No. 18-CR-1228, for a robbery that had occurred on or about November 12,
2018.
{¶ 7} Appellant waived his right to be personally present at the sentencing
hearing, pursuant to Crim. R. 43. During the sentencing hearing, the court heard victim
impact statements from several of the deceased victim’s family members, including the
victim’s mother, two aunts, and a sister. Also during the hearing, attorney Kaitlin E.
Klucas, on behalf of the state, highlighted appellant’s high ORAS score; his criminal
history as a juvenile and as an adult; his previous prison terms in 2015 and in 2019; the
fact that this offense occurred in between two periods of incarceration; and the fact that
appellant had sold the “extremely dangerous” mixture of fentanyl and heroin to someone
he knew.
{¶ 8} The court then heard from appellant’s counsel and from appellant, before
sentencing appellant to serve a mandatory prison term of four years, to run consecutively
with his sentence in Sandusky County Common Pleas Court case No. 18 CR 1228. The
court further ordered that appellant would be subject to a period of mandatory post
release control, for up to three years, and that appellant was to pay court costs.
Analysis
3.
{¶ 9} In his sole assignment of error, appellant argues that the trial court’s order to
serve his sentences consecutively is contrary to law, because the trial court failed to make
the necessary findings under R.C. 2929.14(C)(4).
{¶ 10} Ohio law provides that the imposition of consecutive sentences may be
vacated where an appellate court “clearly and convincingly” finds that (1) the record does
not support the trial court’s findings under R.C. 2929.14(C)(4) or (2) the sentence is
“otherwise contrary to law.” R.C. 2953.08(G)(2); see also State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶1, 21-22 (holding that felony sentences are
to be reviewed under the standard set forth in R.C. 2953.08(G)(2)). Where a trial court
fails to make the findings required under R.C. 2929.14(C)(4), “the imposition of
consecutive sentences is contrary to law.” State v. Morris, 2016-Ohio-7614, 73 N.E.3d
1010, ¶ 24 (8th Dist.). R.C. 2929.14(C)(4) provides as follows:
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
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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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 11} Thus, R.C. 2929.14(C)(4) requires that the trial court make three specific
findings before imposing consecutive sentences, including: (1) that consecutive sentences
are necessary to protect the public or to punish the offender; (2) that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to the
danger that the offender poses to the public; and (3) that R.C. 2929.14(C)(4)(a), (b), or (c)
is applicable. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108, N.E.3d 1028, ¶
252. “[T]he trial court must make the requisite findings both at the sentencing hearing
and in the sentencing entry.” Id. at ¶ 253. Although a “word-for-word recitation of the
language of the statute is not required,” a reviewing court must be able to discern that the
trial court engaged in the correct analysis, and to determine that the record contains
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evidence to support the trial court’s findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 29.
{¶ 12} In imposing appellant’s sentence, the trial court relevantly stated the
following:
[T]he Court is cognizant of the overriding purposes of felony
sentencing as set forth in the Revised Code 2929.11(A), and the Court is
also cognizant of the principles of sentencing under 2929.11(B) and (C) and
has considered those factors.
The Court has also considered the factors set forth in Revised Code
2929.12(B) and the factors that would indicate that [appellant’s] conduct is
more serious than conduct normally constituting the offense.
The Court will find that the victim of the offense did suffer such --
such serious physical harm that she is no longer alive; that [appellant’s]
relationship with the victim did facilitate the offense given that they knew
each other quite well.
In considering the factors that the Court should consider whether
indicating that the Defendant’s conduct is less serious than conduct
normally constituting the offense, the Court will find that the victim did
facilitate the offense to some degree, and, when I say that, this is no -- this
case -- or these types of cases come before this Court quite -- quite
frequently unfortunately, and the Court will find that the victims on these
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circumstances are aware of the risk that can occur of overdosing and dying,
so the Court will make that finding.
The Court also in considering the factors under Subsection D
indicating that [appellant’s] conduct is likely -- indicating that [appellant] is
likely to commit future crimes will find that [appellant] has previously been
adjudicated a delinquent child and has a history of criminal convictions;
that [appellant] has not been rehabilitated to a satisfactory degree after
being adjudicated a delinquent child and not responded favorably to the
sanctions previously imposed for his criminal convictions; that [appellant]
has demonstrated a pattern of drug abuse that is related to this offense and
has basically failed to acknowledge he has that problem and has continued
to use and sell drugs up until the point of his incarceration, and in
considering the factors under Subsection E, indicating that [appellant] is not
likely to commit future crimes, the Court will find that the Defendant has
shown genuine remorse for what has occurred here.
Also, the Court will note that [appellant] did have an ORAS score of
34, which indicates a very high likelihood of re-offending in the future;
therefore, the Court is going to impose under Count 2 of the indictment, the
corrupting another with drugs, a second degree felony, a four year
mandatory prison sentence.
***
7.
As stated, the prison term is mandatory. It will not be run concurrent
with any time previously -- or currently being served on unrelated charges,
so, in essence, it will be consecutive to the sentence he is currently serving.
{¶ 13} As shown in the record, the only mention the trial court makes about the
sentence being consecutive is at the end of its consideration of statutory factors set forth
at R.C. 2929.11(A), (B), and (C), and R.C. 2929.12(B), (D), and (E). At no point does
the court expressly mention R.C. 2929.14(C)(4). Nevertheless, “[t]he trend appears to be
that appellate courts ‘have been fairly deferential to the trial court when reviewing the
transcript of a sentencing hearing to determine whether the trial court has made the
findings required by R.C. 2929.14(C)(4) * * *.’” State v. Elmore, 2016-Ohio-890, 60
N.E.3d 794, ¶ 48 (7th Dist.), quoting State v. Hargrove, 10th Dist. No. 15AP-102, 2015-
Ohio-3125, ¶ 19. Further, the law is clear that a trial court need not state reasons to
support its findings nor is it required to use “magic” or “talismanic” words, so long as it
is apparent that the court conducted the proper analysis. State v. Jones, 7th Dist.
Mahoning No. 13 MA 101, 2014-Ohio-2248, ¶ 6.
{¶ 14} In determining whether the trial court made the requisite findings under
R.C. 2929.14(C)(4), we are guided, in part, by the analyses set forth in Bonnell and in
Elmore.
{¶ 15} In Bonnell, the trial court imposed consecutive sentences on the basis of the
following statements made by the trial court at the sentencing hearing:
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The court: Going through all of the sentencing factors, I can not [sic]
overlook the fact your record is atrocious. The courts have given you
opportunities.
The defendant: Yes.
The court: On the PSI pages 4 through 16, it’s pretty clear that at this
point in time you’ve shown very little respect for society and the rules of
society. The court feels that a sentence is appropriate.
Bonnell at ¶ 9.
{¶ 16} Upon review of these statements, the Supreme Court of Ohio in Bonnell
determined that the trial court made two of the three findings required by R.C.
2929.14(C)(4), but failed to make a proportionality finding:
In this case, the trial court had obviously reviewed the presentence-
investigation report and knew of Bonnell’s criminal record, because it
described his record as atrocious and stated that he had shown very little
respect for society. But the court did not completely adhere to R.C.
2929.14(C)(4).
We can discern from the trial court’s statement that Bonnell had
‘shown very little respect for society and the rules of society’ that it found a
need to protect the public from future crime or to punish Bonnell. We also
can conclude that the court found that Bonnell’s ‘atrocious’ record related
to a history of criminal conduct that demonstrated the need for consecutive
9.
sentences to protect the public from future crime. But it never addressed the
proportionality of consecutive sentences to the seriousness of Bonnell’s
conduct and the danger he posed to the public, which in this case involved
an aggregate sentence of eight years and five months in prison for taking
$117 in change from vending machines.
Thus, the court’s description of Bonnell’s criminal record as
atrocious and its notation of his lack of respect for society do not permit us
to conclude that the trial court had made the mandated statutory findings in
accordance with R.C. 2929.14(C)(4).
Bonnell at ¶ 32-34. Unlike the trial court in the instant case, the sentencing court in
Bonnell never used the term “consecutive sentence,” nor did it engage in any analysis or
weighing process.
{¶ 17} The Seventh District Court of Appeals in Elmore, conducting a similar
analysis, reached a similar result. The relevant facts in that case, as recited by the court in
Elmore, are as follows:
During the sentencing hearing, the trial court thoroughly considered
sentencing factors contained in R.C. 2929.11 and .12. The trial court found
that the crime was made worse by the fact that the intent was to shoot the
victims in the back, and was more serious because it took place in a
residential neighborhood, around juveniles, and was part of an organized
criminal activity. The trial court also found that Elmore lacked remorse,
10.
and even worse, that he considered himself a victim. The trial court also
noted that ‘it bothers me and it’s a serious sentencing factor’ that Elmore
was on post-release control at the time, having been released from prison
only six months before the shooting. The trial court also found it
troublesome that Elmore left a loaded weapon where anyone, including a
child, could have found it, and that he immediately went to look for another
gun, despite having a weapons disability. The court noted that Elmore’s
criminal record was repeated and long and included drugs but to Elmore’s
favor there was no history of violence. In sum, the trial court stated, ‘when
I pile all this up it does appear to me as though the recidivism factors are as
bad as they can get and the nature of the offense, the only thing you have
going for you is that you missed -- well your buddy missed and you missed
too. So, by accident you didn’t kill anybody but that’s really all you have
going for you.’
* * * The trial court went on to impose consecutive sentences
[without ever mentioning the words “consecutive sentences].
Elmore at ¶53-54.
{¶ 18} On these facts, the court in Elmore concluded that observations by the trial
court that the offender’s criminal record was “repeated and long” and that the crime for
which the offender was being sentenced “took place in a residential neighborhood,
around juveniles, and was part of an organized criminal activity” were sufficient to
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satisfy the findings requirements set forth in R.C. 2929.14(C)(4) and R.C.
2929.14(C)(4)(c), involving the necessity to protect the public from future crime by the
offender. Id. at ¶55.
{¶ 19} Like the court in Bonnell, however, the appellate court in Elmore was
ultimately unable to discern from the record, “under even the most generous reading,” the
necessary finding that consecutive sentences were not disproportionate to the seriousness
of the offender’s conduct and to the danger he posed to the public. Elmore at ¶58; see
also R.C. 2929.14(C)(4). As stated by the court in Elmore:
Inherent in the proportionality finding is that a trial court engage in a
weighing process, comparing or balancing these two factors, which it
stands in the best position to do. An appellate court on review could scour
the record for findings which satisfy this requirement, but if the record fails
to demonstrate that the trial court actually weighed these factors, then
reversal is required.
Elmore at ¶ 58. Again, unlike the trial court in the instant case, the sentencing court in
Elmore never used the term “consecutive sentence,” and, further, never performed the
requisite proportionality analysis.
{¶ 20} Regarding the proportionality analysis, in particular, we note that although
the trial court in the current case did not expressly use any form of the word
“proportionate,” where a trial court’s statements on the record clearly indicate that it
considered proportionality with regard to the seriousness of appellant’s conduct and to
12.
the danger presented, the requirements of R.C. 2929.14(C)(4) are, in fact, satisfied. See,
e.g., State v. Chaney, 2d Dist. Montgomery No. 2015-CA-116, 2016-Ohio-5437, ¶ 11,
quoting State v. Hargrove, 10th Dist. Franklin No. 15AP-102, 2015-Ohio-3125 (“ ‘[T]he
trial court’s failure to employ the phrase “not disproportionate to the * * * danger
[appellant] poses to the public” does not mean the trial court failed to engage in the
appropriate analysis and failed to make the required finding.’ ”).
{¶ 21} In State v. Amey, 8th Dist. Cuyahoga Nos. 103000 and 103001, 2016-Ohio-
1121, the court concluded that the following statements by the trial court on the record
“clearly” indicated that the trial court considered proportionality with regard to the
seriousness of the appellant’s conduct and the danger presented:
The [trial] court remarked that Amey was on probation for a
domestic violence conviction * * *. The court noted that he had been
referred to domestic violence classes but did not attend them. The court
also outlined Amey’s extensive record that included crimes of violence and
offenses committed while Amey was on community control sanctions. The
court remarked that he had not ‘responded favorably to sanctions
previously imposed.’
Id. at ¶ 16.
{¶ 22} Applying the foregoing law to the facts of the instant case, we conclude
that observations by the trial court that appellant “has previously been adjudicated a
delinquent child and has a history of criminal convictions,” that appellant “has not been
13.
rehabilitated to a satisfactory degree after being adjudicated a delinquent and [has] not
responded favorably to the sanctions previously imposed for his criminal convictions,”
that appellant “has continued to use and sell drugs up until the point of his incarceration,”
that appellant had an ORAS score of 34, “which indicates a very high likelihood of re-
offending in the future,” and that a woman lost her life as the result of appellant’s actions
are sufficient to satisfy the requirements set forth in R.C. 2929.14(C)(4) and R.C.
2929.14(C)(4)(c). That is, we can conclude from the trial court’s language that the trial
court found that appellant’s extensive record related to a history of criminal conduct that
demonstrated all of the following: (1) a need to protect the public from future crime or to
punish appellant, (2) a need for consecutive sentences to protect the public from future
crime, (3) that consecutive sentences would not be disproportionate to the seriousness of
appellant’s conduct, and (4) that consecutive sentences would not be disproportionate to
the danger appellant poses to the public. See R.C. 2929.14(C)(4); R.C. 2929.14(C)(4)(c).
{¶ 23} Accordingly, because there is not clear and convincing evidence that
appellant’s consecutive sentences are unsupported by the record or that they are
otherwise contrary to law, appellant’ assignment of error is found not well-taken. See
R.C. 2953.08(G)(2).
{¶ 24} We note, however, that the trial court failed to make the required findings
in its sentencing entry. Nevertheless, “[a] trial court’s inadvertent failure to incorporate
the statutory findings in the sentencing entry after properly making those findings at the
sentencing hearing does not render the sentence contrary to law; rather, such a clerical
14.
mistake may be corrected by the court through a nunc pro tunc entry to reflect what
actually occurred in open court.” Bonnell at ¶ 30.
{¶ 25} Because the trial court did make the appropriate statutory findings under
R.C. 2929.14(C)(4) at the sentencing hearing, but failed to include those findings in its
sentencing entry, the trial court may satisfy Bonnell by amending its sentencing entry via
a nunc pro tunc order that includes the omitted findings under R.C. 2929.14(C)(4). See
State v. Cole, 3d Dist. Logan No. 8-18-26, 2018-Ohio-4646, ¶ 23, citing State v.
Mayberry, 2d Dist. Montgomery No. 26025, 2014-Ohio-4706, ¶ 34.
{¶ 26} We affirm the sentence of the trial court and remand so the trial court can
amend its sentencing entry via a nunc pro tunc order to include the trial court’s
consecutive sentence findings.
{¶ 27} Appellee is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed,
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
15.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
16.