State v. Squires , 2021 Ohio 2035 ( 2021 )

[Cite as State v. Squires, 2021-Ohio-2035.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110059
v. :
JEFFREY SQUIRES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: June 17, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-628610-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Steven N. Szelagiewicz, Assistant Prosecuting Attorney, for
appellee.
Jeffrey Richardson, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Jeffrey Squires appeals the trial court’ imposition
of consecutive sentences. Because the trial court made the findings required by
R.C. 2929.14(C), we affirm the sentence imposed by the trial court, but remand the
case to the trial court to issue a journal entry of sentence that conforms with the
sentence imposed in open court and upon the record.
PROCEDURAL HISTORY AND FACTS
On November 14, 2018, after being charged with 10 counts of rape,
felonies of the first degree, and two counts of gross sexual imposition, felonies of the
second degree, Squires entered into a plea agreement with the state and pleaded
guilty to three counts of sexual battery, felonies of the third degree. On December 4,
2018, the trial court imposed an aggregate sentence of 12 years' imprisonment
consisting of three 48-month sentences for each offense to be served consecutively.
On appeal, this court reversed the sentence because “the court did not address the
initial portion of R.C. 2929.14(C)(4)(b) that ‘[a]t least two of the multiple offenses
were committed as part of one or more courses of conduct.’” State v. Squires, 8th
Dist. Cuyahoga No. 108071, 2019-Ohio-4676, ¶ 33. We remanded this matter for
resentencing, noting that “[i]f the trial court determines at the resentencing hearing
that consecutive sentences are appropriate under RC. 2929.14(C)(4), the trial court
shall ‘make the required findings on the record and incorporate those findings in the
sentencing journal entry in accordance with Bonnell[, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659].’” Id. at ¶ 36, quoting State v. Brown, 8th Dist. Cuyahoga
No. 102549, 2015-Ohio-4764, ¶ 30.
In our opinion reversing the trial court’s imposition of consecutive
sentences, we noted the facts presented at the sentencing hearing as follows:
Doe read her written statement for the record.
Your Honor, my name is [Jane Doe] and I loved [Squires]
as a father figure. He betrayed me and my mom. And I
didn’t know he was coming home early that day and he
hurt me when he made me have sex with him and he did
hurtful things to me. When I said it hurt me, he didn’t
care and he kept hurting me.
And I ask that he get the maximum possible sentence for
that. That’s what I wrote.
(Tr. 25.)
Doe’s mother also made a statement. She summarized Doe’s
developmental difficulties caused by her Down syndrome by stating
that Doe “has never grasped the concept of her age and being able to
give consent on her own.” (Tr. 26.) “[Doe] is an adult in age but
functions as a child in many ways.” Id. The mother explained that
Doe had difficulty with her parent’s divorce several years earlier and
that she rarely saw her father because he has been suffering from
cancer. The mother met Squires and eventually introduced him to her
children. Doe and Squires “became close, like father and daughter.”
(Tr. 27.)
The mother then recited the events leading up to Doe’s revelation to
her maternal uncle that Squires had sexually assaulted her. The uncle
called the mother. “He said Doe was upset and needed me and then
he told me Doe said Squires had sex with her, had his mouth on her
breasts, had sex in her front and back and put his penis in her mouth.”
(Tr. 28.) The mother next described the extensive and irreparable
physical and emotional harm that Squires acts have visited on their
lives and said,
I’m asking this [c]ourt to punish the defendant for what
he’s done to [Doe]. I truly believe he’s only sorry that he
got caught. My daughter deserves justice and we hope
he’s sentenced to the maximum that you can give him
under law. Thank you.
(Tr. 32.)
Finally, the trial court heard from the investigating detective Stolz of
the Strongsville Police Department. The detective shared excerpts of
his investigation and his interview with Doe. Doe’s doctor told the
detective that Doe “has the mental capacity of a 10-or 11-year-old
child.” (Tr. 33.) The detective tailored his interview “to the ones that
I conduct with young children.” (Tr. 33-34.) Doe giggled and was
embarrassed by the anatomical drawings and referred to breasts as
“boobies” and a vagina as a “private area.” (Tr. 34.) Doe also said that
Squires was being “rude” when he pinned her arms back and raped
her. Id.During the interview, Doe revealed that additional assaults had
occurred, though she had difficulty with the concept of time and
describing the duration of the assaults. During a controlled call
between Squires and Doe’s mother, Squires promised it wouldn’t
happen again. After his arrest, Squires admitted his guilt to a fellow
inmate and acknowledged Doe’s mental handicap.
Id. at ¶ 17-21
On February 12, 2020, the trial court held a sentencing hearing after
our remand. The court heard from the state and the victim’s mother. She related
the extent of her daughter’s disabilities and outlined how Squires came into their life
and then detailed the nature of the crimes committed against her daughter. She
iterated the confrontation she had with Squires, noting that he did not deny the
crimes to her. She provided details of the change in her daughter, noting that both
she and her daughter have been in counseling for a year and that her daughter
continued to have nightmares. Squires’s counsel outlined the findings the court
would have to make in order to impose consecutive sentences and argued that they
did not apply to the facts of the case, specifically arguing that there was no evidence
of a course of conduct.
The trial court stated that it reviewed all the arguments and pleadings
filed with the court as well as this court’s opinion. It imposed three consecutive
terms of 48 months. As to imposing consecutive sentences, the trial court found:
It is necessary to protect the public and punish the offender, and it is
not disproportionate to the conduct of the offender, and at least two
of the multiple offenses were committed as a part of one or more
courses of conduct and that harm caused by two or more multiple
offenses so committed were so great or unusual that no single prison
term for any of the offenses committed is a part of any course of
conduct accurately reflects the seriousness of the conduct.
The trial court explained its findings by stating that the crimes occurred over a
period of five months where Squires imposed his will on the victim who had limited
mental abilities. The trial court found Squires knew of the victim’s “mental
handicap,” took advantage of her, and abused his position of trust. It indicated that
there was a discernable “connection, some common scheme, or some pattern of
psychological thread that ties these offenses together” and stated Squires had “a
similar motivation in each of these offenses which to impose his sexual will upon the
victim whether it be by force or other means because she’s impaired.”
In total, the trial court imposed an aggregate sentence of 144 months
consisting of three consecutive 48-month terms of imprisonment to be served
consecutively. The journal entry reflecting the sentencing from which Squires
appeals reads in pertinent part:
The court imposes a prison sentence at the Lorain Correctional
Institution of 44 month(s). Counts 1, 7 and 10, fel-3’s: 48 months on
each count, consecutive. It is necessary to protect the public and to
punish the offender and it is not disproportionate to the conduct of
the offender and at least two of the multiples were committed as a 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 a part of any
court [sic] of conduct adequately reflects the seriousness of the
offender’s conduct.
(Emphasis deleted.)
This court remanded the matter for correction of the entry where the
entry stated that the court imposed a sentence of 44 months, not the 144 months
imposed in court. On March 29, 2021, the trial court entered the following entry
nunc pro tunc:
Pursuant to Court of Appeals Case Number 110059, nunc pro tunc
corrected sentencing entry entered: The court imposes a prison
sentence at the Lorain Correctional Institution of 48 months.
(Emphasis deleted.)
LAW AND ARGUMENT
Squires raises one assignment of error, which reads:
The trial court erred in sentencing the appellant to consecutive three-
year sentences [sic] for a total of twelve years for felonies of the third
degree. The court’s findings were not supported by the manifest
weight of the evidence.
Squires argues that the record does not support the trial court’s
findings made pursuant to R.C. 2929.14(C). He argues that the facts of his crimes
do not amount to a “course of conduct” and, thus, the trial court could not make a
finding under R.C. 2929.14(C)(4)(b). The state argues that the repeated sexual
crimes Squires committed against a mentally disabled victim did amount to a course
of conduct and that the record supports the findings made by the trial court.
When reviewing felony sentences, this court applies the standard of
review 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, ¶ 9. Only if we “clearly and convincingly” find that the
record does not support the sentencing court’s findings under R.C. 2929.14(C)(4)
may we increase, reduce, or otherwise modify a sentence, or vacate a sentence and
remand for resentencing. State v. Brechen, 8th Dist. Cuyahoga No. 108667, 2020-
Ohio-2827, ¶ 21. In order to impose prison terms consecutively, a sentencing court
is constrained by R.C. 2929.14(C)(4), which provides:
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.
The trial court found that Squires’s offenses were committed as a part
of a course of conduct. Squires acknowledges the trial court made the requisite
findings pursuant to R.C. 2929.14(C) in imposing consecutives sentences but argues
that it could not find that the three acts of sexual battery constituted a course of
conduct under R.C. 2929.14(C)(4)(b). Ohio’s sentencing statutes do not specifically
define “course of conduct.” The Second District Court of Appeals has confronted
this issue and noted:
The term “course of conduct” is not defined in R.C. 2929.14, but other
sources provide some guidance. The supreme court has held that, for
purposes of a death specification in a case involving multiple murders,
a course of conduct may be established by factual links, including
time, location, weapon, cause of death, or similar motivation. State v.
Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 144.
Ohio Jury Instructions has included this definition in at least one of
its instructions. See 2 Ohio Jury Instructions 513.49(E)(6). Similarly,
“some connection, common scheme, or some pattern or psychological
thread that ties” offenses together can establish a single course of
conduct. State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822
N.E.2d 1239, syllabus.
State v. Summers, 2d Dist. Darke No. 2013 CA 16, 2014-Ohio-2441, ¶ 14; see also
State v. Kay, 2d Dist. Montgomery No. 26344, 2015-Ohio-4403, ¶ 19.
In this case, the trial court considered the motivation, connection,
and scope of Squires’s crimes against his victim in determining that a course of
conduct existed to link the three sexual assaults. Further, given the seriousness of
the crimes, their continuation, and the harm caused not only to the victim but to her
family, the record contains support for the trial court’s finding pursuant to
R.C. 2929.14(C)(4)(b). As such, we cannot find that the record clearly and
convincingly fails to support the trial court’s findings and Squires’s assignment of
error is overruled.
At the sentencing hearing, the trial court imposed a 144-month
aggregate prison sentence. However, the journal entry of conviction does not
accurately reflect that sentence. “A nunc pro tunc entry may be used to correct a
sentencing entry to reflect the sentence the trial court imposed upon a defendant at
the sentencing hearing; the defendant’s presence is not required for entry of the
nunc pro tunc order because the nunc pro tunc order does not modify the original
sentence.” State v. Sandidge, 8th Dist. Cuyahoga No. 109277, 2020-Ohio-1629, ¶ 8,
citing State v. Hall, 8th Dist. Cuyahoga No. 96791, 2011-Ohio-6441, ¶ 22.
Accordingly, we remand this matter for the limited purpose of the trial court to enter
nunc pro tunc an entry of conviction that reflects the sentence imposed in court.
CONCLUSION
The trial court made the statutory findings in order to impose
consecutive sentences. The facts indicated the crimes were committed as a course
of conduct where the sexual assaults were committed over a period of time against
the same victim. The record further supports this conclusion that the offenses were
committed as a course of conduct where the trial court discerned a similar
motivation for the offenses. Given the seriousness of the crimes and the harm
caused to the disabled victim and her family, the record further supports the finding
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.
Although we affirm the sentences imposed by the trial court, we
remand this matter for the limited purpose of issuing a nunc pro tunc entry of
conviction that reflects the aggregate 144-month sentence imposed in this case.
Judgment affirmed, and case is remanded for further proceedings
consistent with this opinion.
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 issuance of a nunc pro tunc journal entry and
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______________________________
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and
EILEEN A. GALLAGHER, J., CONCUR