State v. Jones , 2018 Ohio 850 ( 2018 )

[Cite as State v. Jones, 2018-Ohio-850.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105801
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LEE JONES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-608422-A
BEFORE: McCormack, J., E.A. Gallagher, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 8, 2018
ATTORNEY FOR APPELLANT
Walter H. Edwards, Jr.
614 W. Superior Avenue, Suite 1300
The Rockefeller Building
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Mary Weston
Kerry A. Sowul
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Lee Jones (“Jones”) appeals the imposition of consecutive
sentences following his ninth and tenth convictions for rape. For the reasons that follow, we
affirm Jones’s sentence but remand the case for further proceedings consistent with this opinion.
Procedural and Substantive History
{¶2} On August 2, 2016, Jones was indicted on ten counts in case Cuyahoga C.P.
CR-16-608422. Jones was charged with six counts of rape in violation of R.C. 2907.02(A)(2);
one count of attempted rape in violation of R.C. 2923.02/2907.02(A)(2); one count of gross
sexual imposition in violation of R.C. 2907.05(A)(1); and two counts of kidnapping in violation
of R.C. 2905.01(A)(4). Each count carried a sexually violent predator specification pursuant to
R.C. 2941.148(A), and the kidnapping counts both carried a sexual motivation specification
pursuant to R.C. 2941.147(A).
{¶3} At the time of the indictment, Jones was serving an aggregate 50-year prison term
for prior rape convictions. In 2008, Jones was sentenced in one case to 40 years for four
separate rapes. In 2016, Jones was sentenced to 10 years for another rape, to be served
consecutively to the 40 years.
{¶4} The indictment in this case encompasses two separate incidents, each involving
the rape of a different victim, that occurred in 2001 and 2002, respectively. Jones was
identified as a suspect in the 2002 incident, but the case was not pursued at that time.
Ultimately, the charges in this indictment are the result of “hits,” or matches, in the Combined
DNA Index System.
{¶5} On February 27, 2017, the trial court held a plea hearing. After engaging Jones
in a plea colloquy, the trial court accepted pleas of guilty to two counts of rape, amended to list
the respective victims’ names and to remove the sexually violent predator specifications. The
remaining eight counts in the indictment, together with all corresponding specifications, were
dismissed. The trial court subsequently ordered the probation department to prepare a
pre-sentence investigation report.
{¶6} On April 18, 2017, the trial court held a sentencing hearing. After hearing from
Jones’s counsel, the prosecutor, one of the victims, and Jones, the trial court sentenced Jones to
three years imprisonment on both counts. The three year terms were ordered to run
concurrently to each other and consecutively to the 50 years that Jones was already serving.
{¶7} Jones subsequently appealed his sentence, bringing one assignment of error for our
review.
Law and Analysis
{¶8} In Jones’s sole assignment of error, he argues that the trial court failed to make
the necessary findings to impose consecutive sentences under R.C. 2929.14(C)(4). Specifically,
Jones asserts that the trial court failed to find any of the conditions required by R.C.
2929.14(C)(4)(a) through (c).
{¶9} Under R.C. 2953.08, an appellate court may overturn the imposition of
consecutive sentences where “upon its review, [it] clearly and convincingly finds that ‘the record
does not support the sentencing court’s findings’ under R.C. 2929.14(C)(4), or the sentence is
‘otherwise contrary to law.’” State v. Lunder, 8th Dist. Cuyahoga No. 101223,
2014-Ohio-5341, ¶ 10, citing R.C. 2953.08(G)(2)(a)-(b).
{¶10} R.C. 2929.14(C)(4) states:
If multiple prison terms are imposed on an offender for convictions of multiple
offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect
the public from future crime or to punish the offender and 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 if the court also finds 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.
A trial court is required to make the findings described above at the sentencing hearing and
incorporate its findings into its sentencing journal entry. State v. Hendricks, 8th Dist. Cuyahoga
No. 101864, 2015-Ohio-2268, ¶ 12, citing State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 1.
{¶11} While the trial court must make the requisite findings at sentencing, Ohio courts
have consistently held that courts are not required to engage in a recitation of “magic words” in
order to validly impose consecutive sentences. State v. Gus, 8th Dist. Cuyahoga No. 85591,
2005-Ohio-6717, ¶ 30, citing State v. White, 135 Ohio App. 3d 481, 486, 734 N.E.2d 848 (8th
Dist.1999), and State v. Moore, 8th Dist. Cuyahoga No. 84911, 2005-Ohio-4164, ¶ 7.
Therefore, when it is clear from the record that the trial court engaged in the “appropriate
analysis,” a reviewing court can conclude that the sentence complied with R.C. 2929.14(C)(4).
State v. Pavlina, 8th Dist. Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 10, citing State v. Murrin,
8th Dist. Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12.
{¶12} After a thorough review of the record in this case, we are able to ascertain that,
though at times more informally than not, the trial court made the requisite findings at the
sentencing hearing.
{¶13} The trial judge explicitly stated that consecutive sentences are necessary to punish
the offender. The judge also found that consecutive sentences are not disproportionate, clearly
stating that “[t]hey are not disproportionate to the seriousness of the offender’s conduct and the
danger the offender poses to the public.”
{¶14} Jones points out that at sentencing, the court at one point stated that consecutive
sentences were not necessary to protect the public given Jones’s advanced age at his release. If
this single comment stood alone in the record, Jones’s argument might have merit. However, a
review of the record shows that, despite this comment, the court made the requisite finding under
R.C. 2929.14(C)(4)(c) that, given Jones’s history as a serial rapist, consecutive sentences are
necessary to protect the public from future crime.
{¶15} Specifically, the court made findings related to protecting the public at various
points throughout the sentencing hearing. The court clearly made this finding when it stated:
In order to find consecutive sentences, the Court has to make a determination it’s
necessary to protect the public, right, and it would not demean the seriousness.
Both factors have been determined.
Additionally, at a later point in the sentencing hearing, upon reiterating that this case would result
in Jones’s ninth and tenth convictions for rape, the court stated:
If we could have changed your behavior, we would have done that a lot earlier.
That is not what we are trying to achieve. We are trying to achieve protection.
This analysis, together with numerous references to Jones’s extensive criminal history of violent
sexual offenses, shows that the trial court made the statutorily required findings necessary to
impose consecutive sentences.
{¶16} Although we find no merit to Jones’s argument that the trial court failed to make
the required findings at his sentencing hearing, we agree that the findings were not incorporated
into the court’s journal entry. The court’s journal entry states, in relevant part:
The court considered all required factors of the law. The court finds that prison is
consistent with the purpose of R.C. 2929.11.
This language is sufficient to fulfill a trial court’s obligations under R.C. 2929.11 and 2929.12.
State v. Caffey, 8th Dist. Cuyahoga Nos. 101833 and 101834, 2015-Ohio-1311, ¶ 16, citing State
v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 9, citing State v. Kamleh, 8th Dist.
Cuyahoga No. 97092, 2012-Ohio-2061, ¶ 61. It is not, however, sufficient to satisfy the
requirements of R.C. 2929.14(C)(4). As we noted above, a trial court must both make the
statutory findings at the sentencing hearing and incorporate those findings into its sentencing
journal entry. Id.
{¶17} This failure by the trial court to incorporate its statutory findings under R.C.
2929.14(C)(4) in the sentencing journal entry after properly making those findings at sentencing
is a “clerical mistake” that may be corrected by the court through a nunc pro tunc entry “to reflect
what actually occurred in open court.” Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16
N.E.3d 659, at ¶ 30, citing State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111, 967 N.E.2d
718, ¶ 15.
{¶18} Therefore, we remand this case for the limited purpose of incorporating the
consecutive sentence findings made at sentencing into the trial court’s sentencing journal entry.
{¶19} Affirmed and remanded.
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 correction and
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
____________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR