State v. Jones ( 2022 )

[Cite as State v. Jones, 2022-Ohio-2133.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 110833 and 111020
v. :
JAMES W. JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: June 23, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-657235-A and CR-20-649028-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Michael Martinez, Assistant Prosecuting
Attorney, for appellee.
Russell S. Bensing, for appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
Appellant James W. Jones (“appellant”) brings this appeal challenging
his 60-month prison sentence for charges of drug trafficking, possessing criminal
tools, having weapons while under a disability, and physical control of a vehicle
while under the influence. After a thorough review of the applicable law and facts,
we affirm the judgment of the trial court but remand this matter to the trial court
for the sole purpose of issuing a nunc pro tunc sentencing entry incorporating all of
the consecutive-sentence findings the trial court made at the sentencing hearing.
I. Factual and Procedural History
The charges against appellant stem from three different cases. The first
case, Cuyahoga C.P. No. CR-20-649028, arose after the Cleveland Heights Police
Department executed a search warrant at appellant’s property. As a result of the
search, the police located 72 THC marijuana vape pens, other vape pens in bags, two
parcels from California containing vape pens, more than one pound of raw
marijuana, and a loaded handgun.
Appellant ultimately pled guilty to trafficking, in violation of R.C.
2925.03(A)(2), a felony of the third degree, with schoolyard specifications and
forfeiture specifications; an additional trafficking offense, a felony of the fourth
degree, with forfeiture specifications; possessing criminal tools, in violation of R.C.
2923.24(A), a felony of the fifth degree, with forfeiture specifications; and having
weapons while under disability, in violation of R.C. 2923.13(A)(3), a felony of the
third degree, with forfeiture specifications.
In the second case, Cuyahoga C.P. No. CR-20-652376, appellant was
found by police asleep in the driver’s seat of his vehicle; the car was in “drive” and
appellant’s foot was on the brakes. Officers also observed a loaded handgun in the
vehicle. The police searched appellant’s vehicle and found powder that was
determined to be a cutting agent for drugs, a scale, and $5,093.
In this case, appellant pled guilty to attempted having weapons while
under disability, in violation of R.C. 2923.13(A)(3), a felony of the fourth degree,
with forfeiture specifications.
While these cases were pending, appellant was again arrested for being
passed out in the driver’s seat of his vehicle, resulting in the third case, Cuyahoga
C.P. No. CR-20-657235. When Cleveland Heights police located appellant, he was
seemingly intoxicated but refused a breathalyzer test. Appellant was indicted on two
counts of driving under the influence, both felonies of the third degree. He
ultimately pled guilty to one amended count of physical control of a vehicle while
under the influence.
The court held a sentencing hearing on all three cases and imposed an
aggregate prison term of 60 months, stating as follows:
All of the counts will run concurrent except for Count 1 and Count 8 in
Case No. 649028, those will run consecutive. And they will run
consecutive because it’s necessary to protect the public from future
crime by you. As I said, 36 arrest cycles in 37 years of life. So — and
you’ve done the same crimes over and over again. So I believe it’s
necessary to protect the public from future crime. And 60 months is
not disproportionate to the crimes you have committed in this case, as
well as you committed one or more of these offenses while you were
already under arrest on a previous case, okay, so that’s also important
here.
Also, at least two or more of the multiple offenses were committed as
part of one or more courses of conduct and, like I said, 60 months is
not — is not too much for the crimes committed and it adequately
reflects the seriousness of your conduct. And of course, your criminal
conduct has been atrocious. * * *
With regard to CR-20-649028, the court stated as follows in its
judgment entry:
The court imposes prison terms consecutively finding that consecutive
service of the prison term is necessary to protect the public from future
crime or to punish defendant; that the consecutive sentences are not
disproportionate to the seriousness of defendant’s conduct and to the
danger defendant poses to the public; and that, the defendant
committed one or more of the multiple offenses while the defendant
was awaiting trial or sentencing or was under a community control or
was under post-release control for a prior offense.
Appellant filed the instant appeal, raising two assignments of error for
our review:
1. The trial court’s imposition of consecutive sentences was clearly and
convincingly contrary to law.
2. The trial court’s imposition of consecutive sentences was clearly and
convincingly unsupported by the record.
II. Law and Analysis
We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 1, 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may overturn the imposition of consecutive sentences where the
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 (2) “the sentence is
otherwise contrary to law.”
R.C. 2929.14(C)(4) provides that in order to impose consecutive
sentences, the trial court must find that consecutive sentences are (1) necessary to
protect the public from future crime or to punish the offender; (2) that such
sentences would not be disproportionate to the seriousness of the conduct and to
the danger the offender poses to the public; and (3) 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.
In appellant’s first assignment of error, he argues that the trial court’s
imposition of consecutive sentences was clearly and convincingly contrary to law.
Specifically, he contends that the court made only one of the three necessary
findings under R.C. 2929.14(C)(4).
Conformity with R.C. 2929.14(C)(4) requires the trial court to make
the statutory findings at the sentencing hearing, which means that “‘the [trial] court
must note that it engaged in the analysis’ and that it ‘has considered the statutory
criteria and specifie[d] which of the given bases warrants its decision.’” State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v.
Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). To this end, a reviewing
court must be able to ascertain from the record evidence to support the trial court’s
findings. Bonnell at ¶ 29. “A trial court is not, however, required to state its reasons
to support its findings, nor is it required to [recite verbatim] the statutory language,
‘provided that the necessary findings can be found in the record and are
incorporated in the sentencing entry.’” State v. Sheline, 8th Dist. Cuyahoga No.
106649, 2019-Ohio-528, ¶ 176, quoting Bonnell at ¶ 37.
In the instant matter, the trial court specifically stated that 60 months
was not disproportionate to the crimes committed in the cases or the seriousness of
appellant’s conduct and that at least two of the offenses were committed as part of
the same course of criminal conduct. In addition, the court explicitly stated that
consecutive sentences were necessary to protect the public from future crime by
appellant.
Appellant contends that the trial court did not specifically say that the
consecutive sentences were not disproportionate to the seriousness of appellant’s
conduct and to the danger he poses to the public.
After reviewing the record, we cannot say that the record clearly and
convincingly does not support the trial court’s findings under R.C. 2929.14(C)(4).
The record reflects that the trial court did not specifically state that consecutive
sentences would not be disproportionate to the danger appellant poses to the public;
however, when viewed in their entirety, the trial court’s statements on the record
clearly indicate that the trial court considered proportionality with regard to both
the seriousness of appellant’s conduct and the danger he posed to the public. See
State v. Blevins, 2017-Ohio-4444, 93 N.E.3d 246, ¶ 23 (8th Dist.).
Although the trial court found at the sentencing hearing that R.C.
2929.14(C)(4)(a), (b), and (c) applied, the trial court only incorporated the R.C.
2929.14(C)(4)(a) finding into its sentencing journal entry.
Even where a trial court omits a required consecutive sentencing
finding from its sentencing journal entry, it is well established that the
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.”
State v. Wilkins, 8th Dist. Cuyahoga No. 109368, 2021-Ohio-311, ¶ 17, quoting
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30. In this case,
the trial court’s failure to incorporate its findings under R.C. 2929.14(C)(4)(b) and
(c) into the sentencing journal entry can be corrected through a nunc pro tunc
sentencing entry on remand. Appellant’s first assignment of error is overruled, but
the matter will be remanded for the limited purpose of issuing a nunc pro tunc
sentencing entry incorporating the court’s findings under R.C. 2929.14(C)(4).
In appellant’s second assignment of error, he argues that the
imposition of consecutive sentences was unsupported by the record. Appellant
acknowledges that he has had “brushes” with the law, but contends that these should
be outweighed by the positive aspects of his life, including his compliance with court
orders and work he has done for his community.
As the Supreme Court of Ohio has explained, when reviewing
consecutive sentences, “R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review
the record, including the findings underlying the sentence’ and to modify or vacate
the sentence ‘if it clearly and convincingly finds * * * [t]hat the record does not
support the sentencing court’s findings under’” R.C. 2929.14(C)(4). Bonnell at ¶ 28,
quoting R.C. 2953.08(G)(2)(a).
At sentencing, the court heard from appellant and his counsel, who
presented photographs depicting community involvement by appellant and
submitted letters of support to the court. However, regardless of any good appellant
has done in his community, when considering the crimes he has committed, the
record supports the trial court’s determination that appellant’s actions and criminal
history made him a danger to the public.
In this case, the record reflects that appellant had had 36 arrest cycles
in 37 years, several of which were related to drugs. As noted by the trial court, the
amount of drugs involved in this case was greater than just personal use. Appellant
also had multiple gun cases and was presently being sentenced on a case involving
a gun. We cannot clearly and convincingly conclude that the record does not support
the trial court’s R.C. 2929.14(C)(4) findings.
Thus, we find that the court did not err in imposing consecutive
sentences, and appellant’s second assignment of error is overruled.
III. Conclusion
For all of the foregoing reasons, we find that the trial court made the
requisite findings during the sentencing hearing under R.C. 2929.14(C)(4) and the
findings are clearly and convincingly supported by the record. Further, the
imposition of consecutive sentences was not contrary to law. Both of appellant’s
assignments of error are overruled, and the judgment of the trial court is affirmed.
The matter is remanded to the trial court for the limited purpose of
issuing a nunc pro tunc sentencing entry that incorporates all of the consecutive-
sentence findings, including the findings under R.C. 2929.14(C)(4)(b) and (c), that
the trial court made at the sentencing hearing.
It is ordered that appellee recover from 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR