State v. Jones ( 2013 )

[Cite as State v. Jones, 2013-Ohio-3003.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99230
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
THOMAS JONES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-561910
BEFORE: E.T. Gallagher, J., Rocco, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: July 11, 2013
ATTORNEY FOR APPELLANT
Edward F. Borkowski, Jr.
323 West Lakeside Avenue
Suite 420
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James Hofelich
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant Thomas Jones (“Jones”) appeals his consecutive
sentence. We find no merit to the appeal and affirm.
{¶3} Jones was charged in two cases with multiple drug offenses. In CR- 561910,
Jones pleaded guilty to one count of drug trafficking in violation of R.C. 2925.03(A)(1), a
fifth-degree felony. In CR-561222, Jones pleaded guilty to one count of trafficking in
violation of R.C. 2925.03, a fourth-degree felony. All other charges were nolled. The
court sentenced Jones to a nine-month prison term in CR-561910 and a 15-month prison
term in CR-561222. The court ordered the sentences to run consecutively for an
aggregate 24-month prison term. Jones now appeals, raising two assignments of error.
{¶4} In the first assignment of error, Jones argues the trial court erred by imposing
consecutive sentences without making the findings required by R.C. 2929.14(C)(4). In
his second assignment of error, Jones argues that consecutive sentences are excessive and
disproportionate to the seriousness of the offenses. We discuss these assigned errors
together because they are closely related.
{¶5} R.C. 2953.08(G)(2), as amended by Am.Sub.H.B. No. 86, states that when
reviewing prison sentences, “[t]he appellate court’s standard for review is not whether the
sentencing court abused its discretion.” Instead, the statute states that if we “clearly and
convincingly” find that (1) “the record does not support the sentencing court’s findings
under [R.C. 2929.14(C)(4)]” or (2) that “the sentence is otherwise contrary to law,” then
we “may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the
sentence and remand the matter to the sentencing court for re-sentencing.” State v. Goins,
8th Dist. No. 98256, 2013-Ohio-263, ¶ 6, quoting R.C. 2953.08(G)(2).
{¶6} R.C. 2929.14(C)(4) requires that a trial court engage in a three-step analysis
in order to impose consecutive sentences. First, the trial court must find that
“consecutive service is necessary to protect the public from future crime or to punish the
offender.” Id. Second, the trial court must 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.” Id. Finally, the trial court must find that at least 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 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.
R.C. 2929.14(C)(4).
{¶7} Although a trial court is not required to use “talismanic words” when making
these findings, it must be clear from the record that the trial court actually made the
required statutory findings. Goins at ¶ 10. The requirements are satisfied “when the
record reflects that the court has engaged in the required analysis and has selected the
appropriate statutory criteria.” Id., citing State v. Edmonson, 86 Ohio St. 3d 324, 326,
1999-Ohio-110, 715 N.E.2d 131.
{¶8} Further, with the passage of H.B 86, the General Assembly deleted R.C.
2929.19(B)(2)(c), which was the provision in S.B. 2 that had required sentencing courts
to state their reasons for imposing consecutive sentences on the record. Goins at ¶ 11.
Therefore, a trial court is not required to articulate and justify its findings on the record at
the sentencing hearing. Because there is no statutory requirement that the trial court
articulate its reasons, it does not commit reversible error if it fails to do so, as long as it
has made the required findings. Id.
{¶9} At the sentencing hearing, the court indicated that it had considered the
record, the oral statements made at the hearing, the presentence investigation report, and
two pretrial compliance reports. Prior to pronouncing the sentence, the court made the
following findings:
The court does find that a prison sentence is consistent with the purposes
and principles of sentencing under Ohio Revised Code Section 2929.11 and
that the defendant is not amenable to community controlled sanctions due to
the seriousness of the defendant’s conduct, because it is reasonably
necessary to deter the offender, to protect the public from future crimes and
because it does not place an unnecessary burden on Government resources.
(Tr. 39-40.)
{¶10} In finding that consecutive sentences were necessary to protect the public
and were not disproportionate to the danger that Jones posed to the public, the court
recounted Jones’s lengthy criminal record, including 11 juvenile adjudications of
delinquency and 14 felony convictions. The court also found that Jones violated the law
while on court-supervised release and committed these offenses while on postrelease
control. The court stated:
So in the court’s mind[,] recidivism is more likely, * * * he has not
responded favorably to sanctions previously imposed. There is a pattern of
drug abuse related to the offense. Although he is standing here today
saying he needs drug treatment, actually he advised the probation officer
that he does not believe he has a problem or acknowledged that he needs
treatment at this time.
{¶11} The transcript from the sentencing hearing demonstrates that the court made
the necessary findings for consecutive sentences and we find no reason to dispute those
findings. Moreover, the court stated its findings in the sentencing journal entry. A
court of record speaks only through its journal and not by oral pronouncement. Schenley
v. Kauth, 160 Ohio St. 109, 111, 113 N.E.2d 625 (1953). Therefore, the court complied
with all statutory requirements for the imposition of consecutive sentences.
{¶12} The first and second assignments of error are overruled.
{¶13} Judgment affirmed.
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 appeal 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.
EILEEN T. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA A. BLACKMON, J., CONCUR