State v. Jackson , 2017 Ohio 7167 ( 2017 )

[Cite as State v. Jackson, 2017-Ohio-7167.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104991
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDWARD R. JACKSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-601757-A, CR-16-603688-A, and CR-16-605053-A
BEFORE: McCormack, P.J., Laster Mays, J., and Jones, J.
RELEASED AND JOURNALIZED: August 10, 2017
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Zachary M. Humphrey
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant Edward R. Jackson appeals a judgment of the
Cuyahoga County Court of Common Pleas that imposed consecutive sentences for
Jackson’s multiple burglary convictions. After a careful review of the record and
applicable law, we affirm his consecutive sentences but remand the case for the trial court
to incorporate into the journal entry the statutory findings it made at the sentencing
hearing.
Background
{¶2} In October 2015, Jackson trespassed into a Cleveland Clinic office and stole
credit cards and other items from an employee’s briefcase located underneath her desk.
He later used the credit cards in several stores throughout Cleveland. In December
2015, he trespassed into a VA building and stole a Samsung Galaxy S6 cell phone and
other items from the office of an employee. Jackson was caught when, two weeks later,
he trespassed into Attorney Ian Friedman’s law office and tried to steal from the purse of
an employee there.
{¶3} Jackson pleaded guilty to burglary, F4, and identity fraud, F5, in the
Cleveland Clinic case (CR-15-601757-A). He pleaded guilty to burglary, F3, in the
VA case (CR-16-605053-A) and the law office burglary (CR-16-603688-A).
{¶4} The presentence investigation report revealed Jackson had an extensive
criminal history. Over 44 years, he had 22 felony cases involving burglary and theft
offenses, going back to a burglary he committed in 1973 when he was a juvenile.
{¶5} The trial court sentenced Jackson to three years in prison in the law office
burglary and three years in the VA burglary, to run consecutively. The court also
sentenced him to 18 months in the Cleveland Clinic case, to run concurrently to the other
two cases.
{¶6} Jackson now appeals, raising the following assignment of error for our
review: “The trial court imposed a sentence that is contrary to law and violated Mr.
Jackson’s right to due process when it imposed consecutive sentences without stating the
requisite statutory finding on the record.”
Analysis
{¶7} H.B. 86, enacted in 2011, revived a presumption of concurrent sentences. In
order to impose consecutive sentences, the trial court must make findings set forth in R.C.
2929.14(C)(4) and incorporate those findings into the journal entry of sentence. State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. Pursuant to R.C.
2929.14(C)(4), in order to impose consecutive sentences, the trial court must find that
consecutive sentences are “necessary to protect the public from future crime or to punish
the offender,” that such sentences “are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public,” and that 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 postrelease 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.
{¶8} Generally, when reviewing felony sentences, a reviewing court “may vacate
or modify a felony sentence on appeal only if it determines by clear and convincing
evidence that the record does not support the trial court’s findings under relevant statutes
or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, citing R.C. 2953.08(G)(2).
{¶9} “When imposing consecutive sentences, a trial court must state the required
findings as part of the sentencing hearing, and by doing so it affords notice to the offender
and to defense counsel.” Bonnell at ¶ 29, citing Crim.R. 32(A)(4). However, when
making the findings, “a word-for-word recitation of the language of the statute is not
required, and as long as the reviewing court can discern that the trial court engaged in the
correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld.” Bonnell at ¶ 29. The trial court is
not required to give a “talismanic incantation” of the words of the statute, provided the
necessary findings can be found in the record. Bonnell at ¶ 37.
{¶10} The trial court, when imposing sentences on Jackson, placed great weight on
Jackson’s lengthy criminal history. The record reflects the trial court’s remark that “[n]o
one needs a crystal ball to tell that you’re never going to stop stealing other people’s stuff.
You have going on five decades of criminal activity.” The trial court specifically made
the following findings for imposing consecutive sentences on two of the three cases:
Lastly, I find that consecutive sentences are needed on Cases 605053
and 603688 as your criminal history shows that consecutive terms are
necessary to protect the public. Six years on these two cases is not
disproportionate to the amount of harm that you’ve caused. These were
three separate burglary cases. People have a right to have a sense of
security when they go to work. They are going to work, not for fun, not
for pleasure, they are going to work to support their families, to support
themselves, to make the community a better place. They should not have
to worry about where they put their purse, where they put their phone,
where they put anything.
Mr. Jackson, you, through your 40-year history cannot — you’ve
demonstrated you cannot stop taking other people’s belongings. As a
result, a six-year sentence is necessary to protect the public. It s not
disproportionate to the harm here.
(Emphasis added.)
{¶11} While the trial court did not recite the R.C. 2929.14(C) statutory findings
word for word, upon a review of the record, we are able to discern the court engaged in
the correct analysis and can determine that the record contains evidence to support the
findings. Regarding the first finding, the court specifically stated, twice, that Jackson’s
criminal history showed that consecutive sentences were necessary to protect the public.
{¶12} Regarding the second finding, although the court did not recite verbatim that
consecutive sentences are “not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public,” we are able to discern the
trial court engaged in the correct analysis. Bonnell at ¶ 29.
{¶13} The trial stated consecutive sentences were not disproportionate to the
amount of harm caused by Jackson and further elaborated on the proportionality finding
by observing that over a 40-year period of time, Jackson could not stop taking others’
belongings. The court emphasized that people have a right to be free from a fear of their
property being stolen while in their workplace. Although the statutory words “the
seriousness of the offender’s conduct” and “the danger the offender poses to the public”
were not recited verbatim, the court’s remarks, viewed in its entirety, reflects that it
engaged in the appropriate analysis and placed the finding on the record. See, e.g., State
v. Blevins, 8th Dist. Cuyahoga No. 105023, 2017-Ohio-4444, ¶ 25 (viewing the trial
court’s statements in their entirety, this court can discern the trial court found that
consecutive sentences are not disproportionate to the seriousness of appellant’s conduct
and to the danger appellant poses to the public); State v. Amey, 8th Dist. Cuyahoga Nos.
103000 and 103001, 2016-Ohio-1121, ¶ 16 (although the trial court only stated
consecutive sentences “would not be disproportionate,” this court was able to discern the
required finding when viewing the trial court’s remarks in their entirety).
{¶14} Finally, regarding the R.C. 2929.14(C)(4)(c) finding, the court specifically
stated that “I find that consecutive sentences are needed on Cases 605053 and 603688 as
your criminal history shows that consecutive terms are necessary to protect the public.”
{¶15} We may reverse Jackson’s consecutive sentences if we clearly and
convincingly find either that the record does not support the trial court’s findings or that
the sentence is otherwise contrary to law. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
59 N.E.3d 1231, citing R.C. 2953.08(G). However, because we are able to discern that
the trial court engaged in the correct analysis under R.C. 2929.14(C)(4) and determine
that the record contains evidence regarding Jackson’s lengthy and extensive criminal
history to support the findings, we uphold Jackson’s consecutive sentences. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29. Jackson’s assignment of
error is without merit.
{¶16} Judgment affirmed; however, we remand the matter to the trial court for the
court to issue a new sentencing journal entry, nunc pro tunc, to incorporate into the
journal entry the statutory findings made by the trial court at the sentencing hearing.
State v. Holiday, 8th Dist. Cuyahoga No. 105070, 2017-Ohio-4306, citing Bonnell at
syllabus.1
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 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.
Upon remand, the trial court should also correct, nunc pro tunc, an error in the sentencing
1
entry in CR-15-601757-A. At the sentencing hearing, the trial court imposed consecutive terms in
CR-16-605053-A and CR-16-603688-A only, but the sentencing entry in CR-15-601757-A
erroneously stated that the sentence in that case is consecutive to CR-16-695053-A and
CR-16-603688-A.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
________________________________________
TIM McCORMACK, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR