State v. Carswell , 2021 Ohio 2839 ( 2021 )

[Cite as State v. Carswell, 2021-Ohio-2839.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110033
v. :
ANDRE CARSWELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: August 19, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-647567-A and CR-20-650723-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Megan Helton, Assistant Prosecuting
Attorney, for appellee.
Erin E. Hanson, for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Andre Carswell (“Carswell”) appeals his prison
sentence, and asks this court to vacate his sentence and remand to the trial court for
resentencing. We affirm Carswell’s prison sentence, and remand to the trial court
for the limited purpose to issue a nunc pro tunc entry incorporating its findings for
the consecutive sentences into its journal entries.
While on postrelease control in Cuyahoga C.P. Nos. CR-17-614742-A
and CR-17-616317-A, Carswell was indicted in Cuyahoga C.P. Nos. CR-20-647567-
A and CR-20-650723-A, and pleaded guilty in both. In the first case, Carswell
pleaded guilty to one count of drug possession, a fifth-degree felony, in violation of
R.C. 2925.11(A), and in the second case, Carswell pleaded guilty to one count of
domestic violence, a fourth-degree felony, in violation of R.C. 2919.25(A). The trial
court sentenced Carswell to 12 months’ imprisonment for drug possession and 18
months’ imprisonment for domestic violence. The trial court ordered that the
sentences be served consecutive to each other for a total of 30 months’
imprisonment. Because Carswell was under postrelease control for a previous case,
his probation was terminated and he was sentence to 12-months’ imprisonment to
run consecutive to his current cases.1
I. Facts and Procedural History
On January 7, 2020, Carswell was involved in a traffic stop where he
was pulled over by police officers for traveling at a high rate of speed. The officers
observed several rocks of crack cocaine in the vehicle, and Carswell was arrested and
charged with drug possession. While out on bond for the drug possession case,
Carswell was arrested on May 17, 2020, for domestic violence. While driving,
1 Probation cases Cuyahoga C.P. Nos. CR-17-614742-A and CR-17-616317-A are
not the subject of this appeal.
Carswell was involved in a verbal altercation with the victim, who was three months
pregnant, and started punching her several times in the face. Witnesses to the
physical altercation called 911 and described Carswell beating up the victim while
her head was pinned down in the seat. Another 911 caller feared that Carswell was
going to kill the victim during the severe beating.
Carswell was arrested, and while in jail, he made several recorded
phone calls to the victim. During these phone calls, Carswell told the victim she
should have lied to the police, and stated that he was going to beat her unless she
gets him out of jail by getting the protection order against him lifted. Carswell also
gave the victim two different versions of the domestic violence offense that the
victim could tell the prosecutor’s office to explain her injuries.
On August 13, 2020, Carswell pleaded guilty in both cases, and the
trial court sentenced him to the maximum sentence on each case and ran the
sentences consecutively. Carswell filed this appeal and assigned two errors for our
review:
I. The trial court’s imposition of maximum sentences was
contrary to law; and,
II. The trial court erred by imposing consecutive sentences.
II. Maximum Sentences
A. Standard of Review
We review felony sentences in accordance to R.C. 2953.08(G)(2),
which states that “an appellate 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, ¶ 1, 21.
A sentence is not clearly and convincingly contrary to law “where the
trial court considers the purposes and principles of sentencing under R.C. 2929.11
as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly
applies post-release control, and sentences a defendant within the permissible
statutory range.” State v. Thompson, 8th Dist. Cuyahoga No. 105785, 2018-Ohio-
1393, ¶ 7, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525,
¶ 10.
“The record must indicate that the trial court considered all relevant
factors required by R.C. 2929.11 and 2929.12, but the trial court has no obligation to
state reasons to support its findings.” State v. Evans, 8th Dist. Cuyahoga
No. 109619, 2021-Ohio-1411, ¶ 13, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, syllabus.
B. Law and Analysis
Carswell argues that the trial court erred in sentencing him to the
maximum sentence in the drug possession case. Specifically, Carswell contends that
the trial court did not make any findings regarding the seriousness of his conduct,
nor did the trial court find that the 12-month sentence is consistent with sentences
imposed for similar crimes by similar offenders.
R.C. 2929.11(A) states:
A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the
offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions
that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government
resources. To achieve those purposes, the sentencing court shall
consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender,
and making restitution to the victim of the offense, the public, or both.
“A sentence is contrary to law if * * * the trial court fails to consider
the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the
sentencing factors set forth in R.C. 2929.12.” State v. Taylor, 8th Dist. Cuyahoga
No. 107881, 2019-Ohio-3367, ¶ 11, citing State v. Pawlak, 8th Dist. Cuyahoga
No. 103444, 2016-Ohio-5926, ¶ 58. “R.C. 2929.11 and 2929.12 are not fact-finding
statutes.” Id.R.C. 2929.12 presents an exhaustive list of sentencing factors that the
trial court must consider. The trial court must consider the factors “relating to the
seriousness of the conduct” of the offender, the factors “relating to the likelihood of
the offender’s recidivism,” and the factors “pertaining to the offender’s service in the
armed forces of the United States.” R.C. 2929.12(A). “The sentencing court shall
consider all of the [factors] that apply regarding the offender, the offense, or the
victim, and any other relevant factors, as indicating that the offender’s conduct is
more serious than conduct normally constituting the offense.” R.C. 2929.12(B).
“The sentencing court shall consider all of the [factors] that apply regarding the
offender, the offense, or the victim, and any other relevant factors, as indicating that
the offender’s conduct is less serious than conduct normally constituting the
offense.” R.C. 2929.12(C). “The sentencing court shall consider all of the [factors]
that apply regarding the offender, and any other relevant factors, as factors
indicating that the offender is likely to commit future crimes” R.C. 2929.12(D).
“Therefore, although the trial court must consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors
listed in R.C. 2929.12, the court is not required to make findings or give reasons for
imposing more than the minimum sentence.” Id. at ¶ 11, citing State v. Pavlina, 8th
Dist. Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 15. “A trial court’s general statement
that it considered the required statutory factors, without more, is sufficient to fulfill
its obligations under the sentencing statutes.” Taylor at ¶ 11, citing State v. Wright,
8th Dist. Cuyahoga No. 95096, 2011-Ohio-733, ¶ 4. “And because courts have full
discretion to impose sentences within the statutory range, a sentence imposed
within the statutory range is ‘presumptively valid’ if the court considered the
applicable sentencing factors.” Id., citing State v. Collier, 8th Dist. Cuyahoga
No. 95572, 2011-Ohio-2791, ¶ 15.
At sentencing, the trial court stated, “[t]he Court has considered the
seriousness and recidivism factors and the principles and purpose of our sentencing
statutes.” (Tr. 27.) In its journal entry, the trial court stated, “The court considered
all required factors of the law. The court finds that prison is consistent with the
purpose of R.C. 2929.11.” Journal entry No. 114496535 (Sept. 17, 2020).
Additionally, Carswell was sentenced to 12 months’ imprisonment for
a fifth-degree felony. “For a felony of the fifth degree, the prison term shall be a
definite term of six, seven, eight, nine, ten, eleven, or twelve months.”
R.C. 2929.14(A)(5). Carswell was also sentenced to 18 months for a fourth-degree
felony. “For a felony of the fourth degree, the prison term shall be a definite term of
six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,
seventeen, or eighteen months.” R.C. 2929.14(A)(4). The trial court imposed a
sentence within the statutory range, properly applied postrelease control, and stated
that it considered all of the applicable sentencing factors. Because the trial court is
not required to place its findings on the record, we determine that the trial court did
not err in sentencing Carswell to the maximum sentence.
Carswell’s first assignment of error is overruled.
III. Consecutive Sentences
A. Standard of Review
“An appellate court must conduct a meaningful review of the trial
court’s sentencing decision.” State v. McHugh, 8th Dist. Cuyahoga No. 108372,
2020-Ohio-1024, ¶ 11.
R.C. 2953.08(G)(2) provides that appellate courts “may increase,
reduce, or otherwise modify a sentence * * * or may vacate the
sentence and remand the matter to the sentencing court for
resentencing” if the reviewing court “clearly and convincingly” finds
that (a) “the record does not support the sentencing court’s findings
under [R.C. 2929.14(C)(4)],” or that (b) “the sentence is otherwise
contrary to law.”
State v. Williams, 8th Dist. Cuyahoga No. 108904, 2020-Ohio-1622, ¶ 17.
B. Law and Analysis
In Carswell’s second assignment of error, he argues that the trial court
erred by imposing consecutive sentences. Carswell contends that the trial court
failed to make the necessary statutory findings at Carswell’s sentencing hearing and
incorporate them into the journal entry.
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.
“‘In Ohio, sentences are presumed to run concurrent to one another
unless the trial court makes the required findings under R.C. 2929.14(C)(4).’”
Williams at ¶ 39, quoting State v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-
Ohio-4070, ¶ 28. “The failure to make the above findings renders the imposition of
consecutive sentences contrary to law. Id. at ¶ 40, citing Gohagan at ¶ 29.
R.C. 2929.14(C)(4).” However, the trial court does not need to state the statutory
requirements verbatim. See Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, at ¶ 29. “[A]s 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.” Id.At Carswell’s sentencing hearing, the trial court stated,
I find your criminal history shows that consecutive terms are needed
to protect the public. I find the total sentence of 30 months is not
disproportionate to the amount of harm in this case.
The victim’s face was bloody and beaten and then there were
harassing calls made from the jail demanding her assistance and
changing her story.
(Tr. 31.)
The trial court also found that Carswell committed these crimes
“while on post-release control on Case 614742 and 616317.” (Tr. 27.) Additionally,
the trial court determined that 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 stated,
I’ve tallied up the number of prior cases in Cuyahoga County Common
Pleas Court, and these are his 29th and 30[th] cases. Just do a little
quick math, we’ve spent probably somewhere between 15- and
$20,000 just on assigned counsel fees over the years for Mr. Carswell
let alone all of the ancillary costs to the system of justice, the police
officers, medical expenses due to violence. * * *
Now, violence to a victim, numerous histories of domestic violence, a
criminal history of 30 years, several chances on community control,
which almost every one resulted in regret by the judge granting it and
the imposition eventually of a prison term, the commission of these
two acts while on post-release control, the commission of the
domestic violence after he was out on bond for the drug possession
leads me and any other human being with a small, barely functioning
brain to conclude that Mr. Carswell should not be eligible to walk free
among civilized society, frankly, ever again.
Mr. Carswell, you are — appear to be pathologically incapable of living
peaceably in a law-abiding manner amongst the community.
(Tr. 28-30.)
Based upon our meaningful review of the trial court’s sentencing
judgment, we clearly and convincingly find that the record supports the trial court’s
findings under R.C. 2929.14(C)(4). However, the trial court failed to incorporate its
consecutive-sentence findings in the journal entries. The state acknowledges and
concedes this error as well.
A 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.
See State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d
718, ¶ 15 (where notification of postrelease control was accurately
given at the sentencing hearing, an inadvertent failure to incorporate
that notice into the sentence may be corrected by a nunc pro tunc
entry without a new sentencing hearing).
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30.
After thoroughly reviewing the record, we find that the trial court did
not err when it imposed consecutive sentences upon Carswell. The trial court made
the required findings for the imposition of consecutive sentences and the court’s
findings are supported by the record. However, we remand the matter for the sole
purpose of the trial court issuing a nunc pro tunc entry incorporating its findings for
consecutive sentences into its sentencing journal entry.
Carswell’s second assignment of error is overruled.
Judgment affirmed. This case is remanded for the limited purpose of
having the trial court issue a nunc pro tunc entry incorporating its consecutive-
sentence findings into its sentencing journal entry.
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.
_________________________________
ANITA LASTER MAYS, JUDGE
MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR