State v. Richmond , 2013 Ohio 2887 ( 2013 )

[Cite as State v. Richmond, 2013-Ohio-2887.]
[Please see vacated opinion at 2013-Ohio-2333.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98915
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRIUS RICHMOND
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-540291
BEFORE: S. Gallagher, P.J., Keough, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: July 3, 2013
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: William Leland
Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ON RECONSIDERATION1
1
The original decision in this appeal, State v. Richmond, 8th Dist. No.
98915, 2013-Ohio-2333, released June 6, 2013, is hereby vacated. This opinion,
issued upon reconsideration, is the court’s journalized decision in this appeal. See
App.R. 22(C); see also S.Ct.Prac.R. 7.01.
SEAN C. GALLAGHER, P.J.:
{¶1} Appellant Demetrius Richmond appeals from the sentence that was imposed
by the trial court following a remand for merger of offenses in State v. Richmond, 8th
Dist. No. 96155, 2011-Ohio-6450 (Richmond I). For the reasons stated herein, we affirm
Richmond’s sentence, except with regard to the repeat violent offender specification,
which we remand for a limited sentencing hearing.
{¶2} In July 2010, Richmond was charged under an 11-count indictment with
offenses that arose from Richmond’s physical and sexual abuse of his girlfriend’s son
over a period of several years. The charges included domestic violence, multiple counts
of endangering children, felonious assault, rape, and kidnapping. The indictment also
included sexually violent predator, repeat violent predator, and sexual motivation
specifications. Richmond was found guilty of all counts and sentenced to an aggregate
term of 28 years in prison.
{¶3} On direct appeal in Richmond I, this court affirmed in part, reversed in part,
and remanded for a limited sentencing hearing to address the issues of merger of allied
offenses and court costs. The underlying facts of the case are detailed in Richmond I and
incorporated herein.
{¶4} Richmond also filed a petition for postconviction relief relating to his speedy
trial rights that was denied by the trial court. This court affirmed that ruling in State v.
Richmond, 8th Dist. No. 97616, 2012-Ohio-2511.
{¶5} Upon remand from Richmond I, the state elected to merge Counts 1 through 3
into Count 1, Counts 4 through 7 into Count 7, and Counts 8 through 11 into Count 8.
The trial court sentenced Richmond to eight years on Count 1, felonious assault, plus an
additional ten years for the repeat violent offender specification; a consecutive ten-year
sentence on Count 8, rape; and a concurrent five-year sentence on Count 7. The court
imposed an aggregate term of 28 years in prison, included mandatory 5 years of
postrelease control, imposed court costs, and classified Richmond as a Tier III sex
offender.
{¶6} Richmond timely filed this appeal from the sentence imposed upon remand.
He raises nine assignments of error for our review. His first assignment of error provides
as follows:
I. Defendant was denied due process of law when the court imposed
consecutive sentence in violation of statutory law.
{¶7} Richmond asserts that the trial court was statutorily precluded from imposing
consecutive sentences. He asserts that none of the provisions that authorize consecutive
sentences are applicable and, therefore, his sentence is not authorized by law. At the
time of Richmond’s sentencing in August 2012, R.C. 2929.41(A), provided as follows:
Except as provided in division (B) of this section, division (E) of section
2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a
prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the United
States. Except as provided in division (B)(3) of this section, a jail term or
sentence of imprisonment for misdemeanor shall be served concurrently
with a prison term or sentence of imprisonment for felony served in a state
or federal correctional institution.
{¶8} This court has previously found the statute’s failure to reflect the
renumbering of the judicial fact-finding requirements for consecutive sentencing from
R.C. 2929.14(E) to R.C. 2929.14(C) is a typographical error. State v. Simonoski, 8th
Dist. No. 98496, 2013-Ohio-1031, ¶ 6; State v. Walker, 8th Dist. No. 97648,
2012-Ohio-4274, ¶ 81, fn. 2; State v. Ryan, 8th Dist. No. 98005, 2012-Ohio-5070, 980
N.E.2d 553. “In fact, the legislature made its intent clear by recently amending the
section in September 2012, to change the (E) to (C).” Simonoski at ¶ 7.
{¶9} Accordingly, we overrule Richmond’s first assignment of error.
{¶10} Richmond’s second assignment of error provides as follows:
II. Defendant was denied due process of law when the court imposed
consecutive sentences without appropriate findings.
{¶11} Richmond claims that the trial court failed to comply with H.B. 86 when it
imposed consecutive sentences and asserts that the trial court was required to make
specific findings pursuant to R.C. 2929.14(C)(4). R.C. 2929.14(C)(4) provides that a
court may issue consecutive prison terms if the court finds (1) “the consecutive service is
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) one of three
enumerated factors applies to the offender. R.C. 2929.14(C)(4)(a)–(c).
{¶12} Richmond acknowledges that the trial court found the requirements for
consecutive sentences were met, but complains that the court failed to articulate specific
findings. We find no merit to this argument. Although R.C. 2929.14(C)(4), as amended
by H.B. 86, requires the court to make certain findings before issuing consecutive prison
terms, “a sentencing judge need only make the required statutory findings under R.C.
2929.14(C)(4) — there is no need for the court to state the reasons underlying those
findings.” State v. Jarrett, 8th Dist. No. 98759, 2013-Ohio-1663, ¶ 5. As this court
recognized in Simonoski, 8th Dist. No. 98496, 2013-Ohio-1031, at ¶ 20:
There was no reason for the court to state its reasons for the findings. The
General Assembly deleted R.C. 2929.19(B)(2)(c) in H.B. 86. This was the
provision in S.B. 2 that had required sentencing courts to state their reasons
for imposing consecutive sentences on the record. Accordingly, a trial
court is not required to articulate and justify its findings at the sentencing
hearing. Thus, although a trial court is free to articulate or justify its
findings, there is no statutory requirement that it do so. State v. Goins, 8th
Dist. No. 98256, 2013-Ohio-263, ¶ 11.
{¶13} In any event, a review of the record herein shows that the trial court
articulated its findings:
[E]ither pre or post H.B. 86, [the] Court does find the harm was so great
that a single term does not adequately reflect the seriousness of the conduct.
And, [defense counsel], you indicated that these weren’t the worst
type of offenses. There was nothing about the victim’s behavior, a young
boy, that would have provoked anyone to harm him. However, your client
not only threw him out of the shower, breaking his arm, he refused to give
him the medical attention he needed afterwards for it. He then committed a
rape offense sometime later.
And, the offense of rape, anal rape of a child is, in this Court’s
opinion, the worst form of the offense of rape.
So, I think the behavior in this case clearly justifies consecutive
sentences, necessary to protect the public from future crime by this
Defendant and to punish his conduct. And is not disproportionate with
other sentences. * * * 28 years for anal rape and broken arm of a young
victim is certainly appropriate.
{¶14} Because the trial court made appropriate findings in compliance with R.C.
2929.14(C), we overrule Richmond’s second assignment of error.
{¶15} Richmond’s third assignment of error provides as follows:
III. Defendant was denied due process of law when the court imposed
maximum consecutive sentences along with an additional sentence for
repeat violent offender specification and failing to make the required
statutory findings.
{¶16} The trial court imposed a sentence of eight years on Count 1 for felonious
assault, which was a maximum sentence, plus an additional ten years on the repeat violent
offender specification. Richmond argues that the trial court failed to make the necessary
findings for imposing the sentence on the repeat violent offender specification.
{¶17} We recognize that the state initially conceded that the trial court erred.
However, in a motion for reconsideration of this court’s original opinion, the state raised
concerns regarding the validity of the reenacted “findings” required for the imposition of
additional prison time for repeat violent offenders under R.C. 2929.14(B)(2)(a)(iv) and
(v) as enacted under H.B. 86. We issue this revised opinion to provide clarity on the
process moving forward to ensure both this opinion and State v. Warren, 8th Dist. No.
97837, 2012-Ohio-4721, are not misunderstood on this subject.
{¶18} The state reads the Supreme Court of Ohio’s decision in State v. Hodge, 128
Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E.2d 768 (putting the ball back in the legislature’s
hands with respect to required “findings”), to be narrowly confined to consecutive
sentences. Thus, it views the enactment in H.B. 86 reviving the required “findings” for
repeat violent offenders to be unconstitutional pursuant to State v. Foster, 109 Ohio St. 3d
1, 2006-Ohio-856, 845 N.E.2d 470.
{¶19} The state failed to raise this issue in the trial court below and failed to raise
this issue in the initial appeal. Arguably, R.C. 2953.08(B) authorizes the state to appeal
sentences that are “contrary to law.” Whether the renewed “findings” requirement for
repeat violent offenders under H.B. 86 runs afoul of Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), or Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and is thus “contrary to law,” is an argument for
another day.
{¶20} Because the constitutionality of the revised portions of R.C.
2929.14(B)(2)(a)(iv) and (v) following the enactment of H.B. 86 was not raised by
Richmond or properly asserted by the state, we have limited our review and need not
reach an ultimate determination of the issue. We shall proceed to address the trial court’s
compliance with the requirements of R.C. 2929.14(B)(2)(a).
{¶21} Pursuant to R.C. 2929.14(B)(2)(a), in addition to the longest prison term
authorized for the offense, the sentencing court may impose an additional definite prison
term of one, two, three, four, five, six, seven, eight, nine, or ten years for the repeat
violent offender specification, if all of the following criteria are met:
(i) The offender is convicted of or pleads guilty to a specification of the
type described in section 2941.149 of the Revised Code that the offender is
a repeat violent offender.
(ii) The offense of which the offender currently is convicted or to which the
offender currently pleads guilty is * * * any felony of the first degree that is
an offense of violence and the court does not impose a sentence of life
imprisonment without parole.
(iii) The court imposes the longest prison term for the offense that is not life
imprisonment without parole.
(iv) The court finds that the prison terms imposed * * * are inadequate to
punish the offender and protect the public from future crime, because the
applicable factors under section 2929.12 of the Revised Code indicating a
greater likelihood of recidivism outweigh the applicable factors under that
section indicating a lesser likelihood of recidivism.
(v) The court finds that the prison terms imposed * * * are demeaning to the
seriousness of the offense, because one or more of the factors under section
2929.12 of the Revised Code indicating that the offender's conduct is more
serious than conduct normally constituting the offense are present, and they
outweigh the applicable factors under that section indicating that the
offender's conduct is less serious than conduct normally constituting the
offense.
{¶22} In this case, Richmond was convicted of felonious assault, a first-degree
felony that is an offense of violence, and its accompanying repeat violent offender
specification. The trial court sentenced Richmond to the maximum term of
imprisonment on the felonious assault count. Because the trial court failed to address the
finding requirements of R.C. 2929.14(B)(2)(a)(iv) and (v), we must reverse and remand
for a resentencing hearing on the repeat violent offender specification only. See State v.
Warren, 8th Dist. No. 97837, 2012-Ohio-4721, ¶ 12.
{¶23} Richmond’s fourth assignment of error provides as follows:
IV. Defendant was denied due process of law when the court imposed a
maximum consecutive sentence based upon an unconstitutional judicial
fact-finding.
{¶24} Richmond claims the trial court’s statements with regard to his conduct
against the young victim constituted unconstitutional judicial fact-finding. The subject
statements are contained in the dialogue set forth under the second assignment of error
and were made in the context of justifying the court’s findings supporting the imposition
of consecutive sentences. While trial courts are no longer required to articulate reasons
for imposing consecutive sentences, they are free to do so. State v. Goins, 8th Dist. No.
98256, 2013-Ohio-263, ¶ 11. Accordingly, we overrule Richmond’s fourth assignment
of error.
{¶25} Richmond’s fifth assignment of error provides as follows:
V. Defendant was denied due process of law when the court imposed
maximum consecutive sentences based upon contradicting findings.
{¶26} Richmond claims the trial court failed to make the requisite considerations
under R.C. 2929.11 and 2929.12. He further claims that a contradiction is present in the
court’s journal entry that contains the remark “not worst type of offenses.”
{¶27} R.C. 2929.11(A) provides that when a trial court sentences an offender for a
felony conviction, it must be guided by the “overriding purposes of felony sentencing.”
Those purposes are “to protect the public from future crime by the offender and others
and to punish the offender.” R.C. 2929.11(B) requires a felony sentence to be reasonably
calculated to achieve the purposes set forth under R.C. 2929.11(A), commensurate with
and not demeaning to the seriousness of the crime and its impact on the victim and
consistent with sentences imposed for similar crimes committed by similar offenders.
R.C. 2929.12 provides a nonexhaustive list of factors a trial court must consider when
determining the seriousness of the offense and the likelihood that the offender will
commit future offenses.
{¶28} In this case, the transcript reflects that the trial court found consecutive
sentences were necessary to protect the public from future crime by Richmond and to
punish his conduct. The court also found the sentence was not disproportionate to other
sentences. The court also stated in its journal entry that “prison is consistent with the
purpose of R.C. 2929.11.”
{¶29} Although the journal entry contains the statement “not worst type of
offenses,” it is apparent from the transcript that the trial court found otherwise. At the
sentencing hearing, the trial court disagreed with defense counsel’s position that “these
weren’t the worst type of offenses.” Upon reviewing Richmond’s conduct against the
young victim, the court specifically found that “the offense of rape, anal rape of a child is,
in this Court’s opinion, the worst form of the offense of rape.” Upon remand, the trial
court may amend the sentencing entry nunc pro tunc to reflect that which transpired at the
sentencing hearing.
{¶30} Upon the record before us, we cannot conclude that the sentence was
improper or contrary to law. Richmond’s fifth assignment of error is overruled.
{¶31} Richmond’s sixth assignment of error provides as follows:
VI. Defendant was denied due process of law when the court failed to
consider defendant’s situation in imposing maximum sentences.
{¶32} Richmond claims that the trial court should have considered his behavior
during the intervening period from his original sentencing and his resentencing. The
record reflects that both defense counsel and Richmond were afforded the opportunity to
address the court and offer circumstances for the court’s consideration. Further, there is
nothing in the record to support Richmond’s assertion. Under similar circumstances, we
found no merit to a similar argument in State v. Sutton, 8th Dist. No. 97132,
2012-Ohio-1054, ¶ 31.
{¶33} Richmond also complains that the trial court imposed the sentence without a
presentence investigation report. Crim.R. 32.2(A) provides that “in felony cases the
court shall, and in misdemeanor cases may, order a presentence investigation and report
before granting probation.” The trial court did not impose probation and was not
obligated to order a presentence investigation report prior to imposing a prison term. See
State v. Davis, 8th Dist. No. 95722, 2011-Ohio-1377, ¶ 9; R.C. 2951.03.
{¶34} Accordingly, we reject Richmond’s sixth assignment of error.
{¶35} Richmond’s seventh assignment of error provides as follows:
VII. Defendant was denied due process of law when the court imposed a
five year sentence for endangering children on count seven.
{¶36} Richmond argues that his sentence for endangering children under
R.C. 2919.22(B)(4) should have been for a felony of the third degree, rather than second
degree, because there was no finding that the child was under the age of 18.
{¶37} R.C. 2919.22(B)(4) provides as follows:
No person shall do any of the following to a child under eighteen years of
age: * * * (4) Repeatedly administer unwarranted disciplinary measures to
the child, when there is a substantial risk that such conduct, if continued,
will seriously impair or retard the child’s mental health or development.
A violation of this section is a felony of the second degree if “the violation results in
serious physical harm to the child involved.” R.C. 2919.22(E)(3).
{¶38} Under R.C. 2919.22(B)(4), the victim being under 18 years old is an element
of the crime. It is not an aggravating factor for purposes of elevating the offense, as
argued by Richmond.
{¶39} Our review reflects that the jury was properly instructed on Count 7 for
endangering children, which included that the victim was a child under 18. Because the
jury verdict reflected serious physical harm, Richmond was found guilty of the offense as
a felony of the second degree. Therefore, his five-year sentence on this count was
properly imposed. Richmond’s seventh assignment of error is overruled.
{¶40} Richmond’s eighth assignment of error provides as follows:
VIII. Defendant was denied due process of law when the court failed to
properly consider a waiver of court costs as defendant was indigent.
{¶41} “[A] trial court may assess court costs against a convicted indigent
defendant” who has been convicted of a felony. State v. White, 103 Ohio St. 3d 580,
2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. Further, while waiver of court costs against an
indigent defendant is permissible, it is not required. Id. at ¶ 14; State v. Perry, 8th Dist.
No. 97696, 2012-Ohio-3573, ¶ 10. The decision to impose costs will not be reversed
absent an abuse of discretion. Perry at ¶ 12.
{¶42} In imposing court costs in this case, the trial court indicated that Richmond
would be in prison for 28 years and would be earning $16 a month in pay. Insofar as
Richmond claims that the court failed to notify him that the failure to make timely
payments could result in an order that he perform community service, such an advisement
would have been impractical given Richmond’s lengthy prison term. Further, then R.C.
2947.23(A)(1)(a) had indicated “the failure to give this notice does not affect the court’s
ability to require community service and, effective March 22, 2013, the trial court is no
longer required to give this notice to offenders who receive a prison sentence. See 2012
Sub.H.B. 247.” State v. Haney, 2d Dist. No. 25344, 2013-Ohio-1924, ¶ 21.
{¶43} Finding no abuse of discretion or error by the trial court, we overrule
Richmond’s eighth assignment of error.
{¶44} Richmond’s ninth assignment of error provides as follows:
IX. Defendant was denied due process of law and subjected to multiple
punishments when the court failed to grant defendant appropriate jail time
credit.
{¶45} Richmond argues that the trial court failed to give him appropriate jail-time
credit, reflecting the time between his original sentencing and the time of his
resentencing. After this appeal was filed, Richmond filed a motion for jail-time credit
that was granted by the trial court and has rendered this assignment of error moot.
{¶46} In conclusion, we affirm the judgment of the trial court except with regard
to the repeat violent offender specification. Because the trial court failed to address the
finding requirements of R.C. 2929.14(B)(2)(a)(iv) and (v), we must reverse and remand
for a resentencing hearing on the repeat violent offender specification only.
{¶47} Judgment affirmed in part, reversed in part; case remanded.
It is ordered that appellant and appellee share the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR