State v. Jarrett , 2013 Ohio 1663 ( 2013 )

[Cite as State v. Jarrett, 2013-Ohio-1663.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98759
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH L. JARRETT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-554504, CR-558789, CR-559105,
CR-559365, CR-559433, CR-559935, CR-562138, and CR-562549
BEFORE: Stewart, A.J., Boyle, J., and Kilbane, J.
RELEASED AND JOURNALIZED: April 25, 2013
ATTORNEY FOR APPELLANT
Ronald A. Skingle
2450 St. Clair Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Holly Welsh
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} Defendant-appellant Kenneth Jarrett pleaded guilty to counts of fraud and
forgery. He was granted bond pending sentencing, but failed to appear for sentencing.
While on violation of bond, he committed crimes in seven more cases involving fourth
and fifth degree grand theft, attempted aggravated theft, forgery, identity theft, identity
fraud, and possession of criminal tools. He pleaded guilty and appeared before the court
for sentencing on all eight cases. Noting that Jarrett had 16 prior felony offenses in
addition to the eight presently before it, the court imposed consecutive sentences totaling
eight years and six months, finding in particular that Jarrett’s conduct was so great that a
single prison sentence would not adequately reflect the seriousness of his conduct.
Jarrett concedes that his sentences were within the statutory range and that the court made
the required factual findings necessary to impose consecutive sentences. He argues on
appeal, however, that the finding regarding the seriousness of his conduct found no
support in the record because the total financial harm he caused the victims — $22,590 —
was not so great or unusual to justify consecutive sentences.
{¶2} R.C. 2929.14(C)(4) permits the court to impose sentence on multiple prison
terms consecutively if it finds that (1) a consecutive sentence is necessary to protect the
public from future crime or to punish the offender and (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. In addition to these two factors, the court must find any of
the following:
(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.
Id.{¶3} When reviewing consecutive sentences imposed under R.C. 2929.14(C)(4),
we “review the record, including the findings underlying the sentence or modification
given by the sentencing court” to determine whether (1) the record does not support the
court’s findings under R.C. 2929.14(C)(4) or (2) “the sentence is otherwise contrary to
law[.]” See R.C. 2953.08(G)(2).
{¶4} There is no question that the court made the required findings under R.C.
2929.14(C)(4): it determined that consecutive sentences were necessary to protect the
public from future crime, that consecutive sentences were not disproportionate to the
harm Jarrett caused, and that no single term would adequately reflect the seriousness of
his conduct.
{¶5} We have held, consistent with nearly every other district to consider the issue,
that 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. Goins, 8th Dist. No. 98256, 2013-Ohio-263; State v. Blackburn, 8th
Dist. Nos. 97811 and 97812, 2012-Ohio-4590, ¶ 35. See also State v. Alexander, 1st Dist.
Nos. C-110828 and C-110829, 2012-Ohio-3349; State v. Wells, 2d Dist. No. 2012-CA-12,
2012-Ohio-5529; State v. McKenzie, 3d Dist. No. 15-12-07, 2012-Ohio-6117; State v.
Midlam, 4th Dist. No. 12CA2, 2012-Ohio-6299; State v. Patterson, 5th Dist. No.
CT2012-0029, 2012-Ohio-5600; State v. Nowlin, 6th Dist. No. CT2012-0015,
2012-Ohio-4923; State v. Galindo-Barjas, 7th Dist. No. 12 MA 37, 2013-Ohio-431.
{¶6} The rationale for these holdings is that, although the prior statutory version of
consecutive sentencing invalidated in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470, required the court to make findings and state its reasons in support of
those findings, the current consecutive sentencing statute contained in H.B. 86 does not.
Goins at ¶ 11. The General Assembly’s omission of language requiring the court to state
its reasons for making findings constitutes an amendment of the prior version and
indicates an intent to change the prior meaning of the statute. State ex rel. Mager v. State
Teachers Ret. Sys. of Ohio, 123 Ohio St.3d 195, 2009-Ohio-4908, 915 N.E.2d 320, ¶ 23,
citing Malone v. Indus. Comm., 140 Ohio St. 292, 299, 43 N.E.2d 266 (1942).
{¶7} The next question we consider is whether the record does not support the
court’s finding that consecutive sentences were not disproportionate to the seriousness of
Jarrett’s conduct. He argues that the $22,590 in financial harm he caused in eight cases
was not as serious as it would have been in a single case involving $22,590 of financial
harm; therefore, consecutive sentences were unwarranted.
{¶8} We do not need to get into a discussion of what amount of monetary loss
constitutes “seriousness” for purposes of R.C. 2929.14(C)(4) in order to find that the
court did not err by concluding that consecutive sentences were proportionate to Jarrett’s
conduct. The “seriousness” of one’s conduct goes beyond mere monetary loss.
Although we have no difficulty concluding that Jarrett’s eight different counts of theft
and fraud involving thousands of dollars of losses to his individual victims constituted
“serious” conduct, the court had more than that to justify consecutive sentences. Jarrett
has 16 prior felony convictions. Those prior convictions, coupled with the eight
convictions in this case, show him to be incorrigible. And to make matters worse, Jarrett
displayed a flagrant disregard for the court by committing seven offenses while on bond
awaiting sentencing in another case. The consecutive sentences were thus not
disproportionate to the seriousness of his conduct.
{¶9} Judgment affirmed.
It is ordered that appellee recover of appellant its 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 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.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
MARY EILEEN KILBANE, J., CONCUR