State v. Brown , 2016 Ohio 5401 ( 2016 )

[Cite as State v. Brown, 2016-Ohio-5401.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103201
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTONIO BROWN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-579563
BEFORE: Blackmon, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: August 18, 2016
-i-
ATTORNEY FOR APPELLANT
Robert A. Dixon
4403 St. Clair Ave.
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Gregory J. Ochocki
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Antonio Brown (“Brown”) appeals from the trial court’s imposition of
consecutive felony sentences for his convictions of sex offenses and assigns the following
error for our review:
I. The lower court erred by imposing consecutive sentences without
making findings of fact required by R.C. 2929.14(C)(4) and/or by relying
upon unsubstantiated unproven allegations at sentencing to fulfill statutorily
required findings in violation of the appellant’s right to due process of law.
{¶2} Having reviewed the record and pertinent law, we affirm the decision of the
trial court and remand for further proceedings consistent with this opinion. The apposite
facts follow.
{¶3} On May 4, 2014, Brown pled guilty to one count of rape, one count of
attempted rape, and two counts of gross sexual imposition. On June 10, 2014, the court
sentenced Brown on the rape, which is a first-degree felony punishable by three to 11
years in prison, and the attempted rape, which is a second-degree felony punishable by
two to eight years in prison. The court merged the two gross sexual imposition counts
into the respective rape and attempted rape counts, and sentenced Brown to ten years on
the rape and seven years on the attempted rape, to run consecutively, for an aggregate
prison term of 17 years. This court granted Brown’s motion to file a delayed appeal from
his sentence.
Felony Sentencing Standard of Review
{¶4} R.C. 2953.08(G)(2) provides, in part, that when reviewing felony sentences,
the appellate court’s standard of review is not whether the sentencing court abused its
discretion; rather, if this court “clearly and convincingly” finds that (1) “the record does
not support the sentencing court’s findings under R.C. 2929.14(C)(4),” or that (2) “the
sentence is otherwise contrary to law,” then we may conclude that the court erred in
sentencing. See also State v. Marcum, Slip Opinion No. 2016-Ohio-1002.
Consecutive Sentences
{¶5} “[T]o 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 * * *.” State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Pursuant to R.C. 2929.14(C)(4), the court
must find consecutive sentences are “necessary to protect the public from future crime or
to punish the offender”; “not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public”; and at least one of the following three
factors:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction * * *, 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.
{¶6} At the sentencing hearing in the case at hand, the court made the following
findings on the record:
The Court finds that consecutive sentences are necessary to protect the
public from future crimes, and the Court finds that the prosecutor has
indicated, and it is included in the probation report as well as in her
recitation this morning that there have been other family members that have
been sexually assaulted by you. And, therefore, you pose a danger to
others as you continue with criminal activity of sexual assault.
The Court further finds that consecutive sentences are necessary to punish
the offender. The Court finds that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct.
The Court finds that consecutive sentences are not disproportionate to the
danger the offender poses to the public.
The Court finally finds that your conduct demonstrates that consecutive
sentences are necessary to protect the public from future crimes by the
offender.
The Court believes that because of your history where you continue to
sexually assault members of your family that you continue to pose a danger
to your community, to your family members, and that some of the language
that you use while you were exploiting these young people poses even more
of a dangerous situation than some of the sexual contact that you had with
them.
Therefore the Court believes that consecutive sentences are necessary.
{¶7} According to the record, Brown’s offenses involved two separate victims,
both of whom were family members, and the offenses were alleged to have occurred on
the same day. Brown argues that although there were previous allegations involving
other family-member victims, these accusations were unsupported and did not result in
indictments. Brown further argues that the court improperly relied upon these unproven
allegations in sentencing him for the sex offenses in the case at hand.
{¶8} However, the allegations of abuse of other family members are contained in
Brown’s presentence investigation report. Furthermore, one of the victim’s mothers
testified at the sentencing hearing that she knew Brown molested other family members,
but she “held it in for 30 years.”
{¶9} “Criminal wrongdoing, even without convictions, is part of an accused’s
social history and thus properly included in a presentence investigation report.” State v.
Richey, 64 Ohio St.3d 353, 358, 595 N.E.2d 915 (1992). Pursuant to R.C. 2929.19(B), at
a felony sentencing hearing, the court “shall consider the record, any information
presented at the hearing by any person * * *, and, if one was prepared, the presentence
investigation report * * *.” Thus, the court properly considered Brown’s social history
and conduct in imposing the 17-year sentence.
{¶10} In Brown’s appellate brief and at oral argument, Brown’s counsel contended
that, despite the statutory nature of felony sentencing, the court’s consideration of
Brown’s “uncharged conduct” violated his due process rights. In support of this
argument, Brown cites two cases. First, is Townsend v. Burke, 334 U.S. 736, 741, 68
S.Ct. 1252, 92 L.Ed. 1690 (1948), in which the United States Supreme Court held that a
sentence “predicated on misinformation or misreading of court records” of a defendant
who is not represented by counsel violates due process. Townsend does not apply to the
instant case, because Brown was represented by counsel, and nothing in the record
suggests that the accusations in question were false.
{¶11} The second case Brown cited is State v. Hawkins, 8th Dist. Cuyahoga No.
102185, 2015-Ohio-3140, ¶ 17, in which this court ordered the trial court to resentence
the defendant on limited remand, because the court failed “to make the statutory findings
and incorporate them in the sentencing journal entry” before imposing consecutive
sentences. Upon review of the instant case, we find that the court made the required
findings pursuant to R.C. 2929.14(C)(4), and that these findings are supported by clear
and convincing evidence in the record. Accordingly, Brown’s sole assigned error is
overruled.
{¶12} However, we note, and the state concedes, that the trial court failed to
incorporate its R.C. 2929.14(C)(4) findings in its journal entry. “[B]ecause a court
speaks through its journal, the court should also incorporate its statutory findings into the
sentencing entry.” (Citation omitted.) State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.
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
mistake may be corrected by the court through a nunc pro tunc entry to
reflect what actually occurred in open court.
Id. at ¶ 30.
{¶13} In light of Bonnell, this matter is remanded to the trial court for the limited
purpose of issuing a nunc pro tunc journal entry incorporating its consecutive sentence
findings.
{¶14} Judgment affirmed and remanded to the lower court for proceedings
consistent with this opinion.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas 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.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR