State v. Alexander , 2017 Ohio 4196 ( 2017 )

[Cite as State v. Alexander, 2017-Ohio-4196.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-761
v. : (C.P.C. No. 16CR-2947)
Leon M. Alexander, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 8, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: The Law Office of Thomas F. Hayes, LLC, and
Thomas F. Hayes, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Leon M. Alexander, appeals from the judgment entry
of the Franklin County Court of Common Pleas finding appellant guilty of aggravated
burglary with a repeat violent offender ("RVO") specification, attempted kidnapping with
a sexual motivation specification, possessing criminal tools, aggravated robbery, and
felonious assault and sentencing him to a total of 21 years incarceration. For the following
reasons, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On October 3, 2016, appellant entered a plea of guilty to one count of
aggravated burglary, in violation of R.C. 2911.11, with an RVO specification pursuant to
R.C. 2941.149(A), a first-degree felony, one count of attempted kidnapping, in violation of
No. 16AP-761 2
R.C. 2923.02, as it relates to R.C. 2905.01, with sexual motivation specification pursuant
to R.C. 2941.147(A), a second-degree felony, one count of possessing criminal tools, in
violation of R.C. 2923.24, a fifth-degree felony, one count of aggravated robbery, in
violation of R.C. 2911.01, a first-degree felony, and one count of felonious assault, in
violation of R.C. 2903.11, a second-degree felony. The trial court accepted appellant's
plea, ordered a nolle prosequi on the remaining attempted rape count and several
additional specifications, and ordered a pre-sentencing investigation ("PSI") report.
{¶ 3} On October 27, 2017, the trial court held a sentencing hearing. During the
hearing, the prosecution asked for consecutive sentences and noted both that the victim in
this case was an 89-year-old woman and that appellant held a criminal record of serious
offenses. The victim addressed the court, stating that appellant invaded her home at 4:00
a.m. in the morning, wrapped a clothes line around her hands and throat, and when she
said she did not have any money, beat her, took her clothes off, removed his own clothes,
got a box knife from her kitchen, and told her he was going to rape her and cut her throat.
The police, responding to a neighbor's call, apprehended appellant. The victim stated that
as a result of the crimes, she was hospitalized, required nursing care and physical therapy,
is still learning to walk again, and endures pain and nightmares.
{¶ 4} The trial court discussed appellant's substantial criminal history whereby
appellant "spent more than half of [his] adult lifetime victimizing several senior citizens,
all female, by breaking into their homes on * * * at least three separate occasions and
threatening their lives" to feed his drug habit. (Sentencing Tr. at 29.) The trial court then
proceeded to sentence appellant to 11 years on the aggravated burglary count, 10 years on
the associated RVO specification, 7 years on the attempted kidnapping count, 11 months
on the possessing criminal tools count, 10 years on the aggravated robbery count, and 6
years on the felonious assault count. The trial court specified that the maximum sentence
was being imposed on the aggravated burglary count because appellant "committed the
worst form of the offense and [appellant], clearly based upon [his] record, pose[s] a great
likelihood of committing future crimes." (Sentencing Tr. at 32.)
{¶ 5} After confirming with appellee that sentencing on the RVO specification was
mandatory consecutive time that did not require "consecutive language" at the hearing,
the trial court ran the aggravated burglary sentence consecutive to the RVO specification
No. 16AP-761 3
sentence; defense counsel did not object. (Sentencing Tr. at 32.) The trial court ran the
remaining sentences concurrently to each other and the aggravated burglary and RVO
specification to arrive at an aggregate sentence of 21 years incarceration. The judgment
entry memorializing the sentence states that the trial court considered the purposes and
principles of sentencing set forth in R.C. 2929.11, the factors set forth in R.C. 2929.12, and
weighed the applicable provisions of R.C. 2929.13 and 2929.14. Appellant filed a timely
appeal to this court.
II. ASSIGNMENT OF ERROR
{¶ 6} Appellant presents one assignment of error:
The trial court erred to the prejudice of Appellant by
improperly ordering him to serve consecutive sentences that
contravene Ohio's sentencing statutes and principles and
violate his due process rights.
III. DISCUSSION
{¶ 7} Under his only assignment of error, appellant challenges the trial court's
imposition of consecutive sentences for the aggravated burglary count and the RVO
specification. For the following reasons, we disagree.
{¶ 8} Because appellant did not object to the imposition of consecutive sentences
at his sentencing hearing, he has waived all but plain error. State v. Dennison, 10th Dist.
No. 14AP-486, 2015-Ohio-1135, ¶ 16, citing State v. Ayers, 10th Dist. No. 13AP-371,
2014-Ohio-276, ¶ 7; State v. Jackson, 7th Dist. No. 12 MA 199, 2014-Ohio-777, ¶ 14.
Under Crim.R. 52(B), plain errors or defects affecting substantial rights may be noticed
even though they were not brought to the attention of the court. "The burden of
demonstrating plain error is on the party asserting it." State v. Payne, 114 Ohio St.3d
502, 2007-Ohio-4642, ¶ 17.
{¶ 9} "Under Ohio law, absent an order requiring sentences to be served
consecutively, terms of incarceration are to be served concurrently." State v. Sergent, 148
Ohio St.3d 94, 2016-Ohio-2696, ¶ 16, citing R.C. 2929.41(A). However, imposition of
consecutive sentences is mandatory in certain circumstances. Id. If consecutive
sentences are not mandatory, "trial judges have discretion to order * * * multiple
sentences to be served consecutively pursuant to R.C. 2929.14(C)(4)." Id. See, e.g., State
No. 16AP-761 4
v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 44-57, appeal denied, 147 Ohio
St.3d 1505, 2017-Ohio-261. "[I]f the trial judge exercises his or her discretion to impose
consecutive sentences, he or she must make the consecutive-sentence findings set out in
R.C. 2929.14(C)(4), and those findings must be made at the sentencing hearing." Sergent
at ¶ 17, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 23.
{¶ 10} A guilty plea or conviction on an RVO specification may trigger mandatory
consecutive sentences under Ohio law. R.C. 2929.14(B)(2). Under R.C. 2929.14(B)(2)(a),
where the trial court imposes the maximum possible prison term for an underlying felony
offense of violence and the offender is convicted of or pleads guilty to an RVO
specification, pursuant to R.C. 2941.149, the trial court has discretion to impose an
additional definite prison term of one to ten years.1 Harris at ¶ 46. As stated in Harris,
"[a]lthough imposition of the additional prison term is discretionary, if the trial court
chooses to impose the additional term under R.C. 2929.14(B)(2)(a), the sentencing statute
requires the additional term to be served 'consecutively to and prior to the prison term
imposed for the underlying offense.' " Id., citing R.C. 2929.14(B)(2)(d) and State v.
Whitaker, 12th Dist. No. CA2012-10-013, 2013-Ohio-4434, ¶ 17. Because the consecutive
sentences are mandatory, the trial court is not obligated to make the findings to support
discretionary consecutive sentences under R.C. 2929.14(C) and Bonnell. Harris at ¶ 46-
47; Sergent at ¶ 16-17, 30.
{¶ 11} Pursuant to R.C. 2929.14(A)(1), a first-degree felony, such as the aggravated
burglary here, requires a definite prison term of 3 to a maximum of 11 years. In this case,
the trial court sentenced appellant to 11 years on the aggravated burglary charge, the
maximum possible prison term. The trial court then exercised its discretion in imposing
an additional prison term on the RVO specification and indicated that consecutive
sentences in this case are mandatory.
{¶ 12} Appellant does not articulate how the trial court erred in this regard.
Appellant instead first argues generally that the consecutive sentences violate R.C.
2929.14 in that the trial court failed to evaluate the proportionality of appellant's case to
similarly situated individuals. Appellant does not cite to which section of R.C. 2929.14 he
1See also R.C. 2929.14(B)(2)(b) (describing circumstances where a maximum prison term on the underlying
offense and additional prison term are mandatory).
No. 16AP-761 5
believes was violated. To the extent appellant references proportionality in consecutive
sentencing under R.C. 2929.14(C)(4), he states the incorrect analysis under that section.
State v. Dennison, 10th Dist. No. 15AP-592, 2016-Ohio-8361, ¶ 20, 28, citing R.C.
2929.14(C)(4) (discussing that for the proportionality analysis under R.C. 2929.14(C)(4),
the trial court does not have to find that the sentence is consistent with similarly situated
offenders but, rather, must determine whether consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public). Regardless of the proper analysis, as stated above, R.C.
2929.14(C)(4) addresses discretionary consecutive sentences and is therefore inapplicable
to this case.
{¶ 13} Furthermore, to the extent appellant's argument implicitly raises R.C.
2929.11(B), which provides that a sentence imposed for a felony must be consistent with
sentences imposed for similar crimes committed by similar offenders, the trial court
stated in its judgment entry that it considered R.C. 2929.11. "Such a notation in the trial
court's sentencing entry is sufficient to satisfy the consistency requirement in R.C.
2929.11(B)." State v. Hayes, 10th Dist. No. 08AP-233, 2009-Ohio-1100, ¶ 11. Moreover,
appellant provides no argument as to R.C. 2929.11(B), let alone how his consecutive
sentences here violate that section. As such, appellant has not met his burden of
demonstrating error on appeal. Watkins v. Holderman, 10th Dist. No. 11AP-491, 2012-
Ohio-1707, ¶ 11; App.R. 16(A)(7); State v. Smith, 9th Dist. No. 15AP0001, 2017-Ohio-359,
¶ 22 (discussing that it is not an appellate court's duty to create an argument on the
appellant's behalf). Therefore, we find appellant's argument regarding consistency and
proportionality in relation to his consecutive sentence to lack merit.
{¶ 14} Appellant next argues that the trial court erred in imposing consecutive
sentences in this case because it is not the minimum sanction to accomplish the purpose
of protecting the public and punishing the offender pursuant to R.C. 2929.11(A).
Specifically, appellant argues that the trial court failed to give meaningful consideration to
the mitigating factors in the PSI, appellant's apology and feeling of remorse, and his
history of drug abuse and lack of opportunity to receive rehabilitation he needs and
requests. Further, appellant asserts that the trial court failed to demonstrate that
No. 16AP-761 6
appellant posed a threat to the public and was so likely to recommit an offense that a 21-
year sentence was the minimum amount that would ensure the purposes of R.C. 2929.11.
{¶ 15} In addition to disagreeing with the merits of appellant's argument as against
the record, we again find that appellant has not met his burden in proving an error in
regard to R.C. 2929.11(A) as it relates to his consecutive sentences. As stated previously,
the trial court ordered mandatory consecutive sentences for the aggravated burglary and
RVO specification, which is supported by R.C. 2929.14(B)(2)(d). As such, the trial court
did not violate R.C. 2929.11(A) in imposing consecutive sentences in this case. Moreover,
any argument that the trial court should have imposed less than the maximum sentence
on either the aggravated burglary or the RVO specification does not support sustaining
the assignment of error, which only challenges running those sentences consecutively.
Huntington Natl. Bank v. Burda, 10th Dist. No. 08AP-658, 2009-Ohio-1752, ¶ 21, citing
App.R. 12(A)(1)(b); Williams v. Barrick, 10th Dist. No. 08AP-133, 2008-Ohio-4592, ¶ 28.
Considering all the above, appellant has not demonstrated that the trial court erred, let
alone committed plain error, in ordering him to serve consecutive sentences for the
aggravated burglary and RVO specification.
{¶ 16} Accordingly, appellant's sole assignment of error is overruled.
IV. CONCLUSION
{¶ 17} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and HORTON, JJ., concur.
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