State v. Diamond ( 2024 )

[Cite as State v.
Diamond, 2024-Ohio-473.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant/
Cross-Appellee, : Nos. 112143, 112144, 112145 and
112438
v. :
JAMES DIAMOND, :
Defendant-Appellee/
Cross-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED
IN PART; REMANDED IN PART
RELEASED AND JOURNALIZED: February 8, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-660040-A, CR-21-660391-A, CR-21-661467-A and
CR-21-662024-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van and Gregory J. Ochocki,
Assistant Prosecuting Attorneys, for appellant/cross-
appellee.
Kelley Ferraro, LLC and Carl W. Sullivan, for
appellee/cross-appellant.
EILEEN A. GALLAGHER, P.J.:
In this consolidated appeal, plaintiff-appellant/cross-appellee the
state of Ohio appeals from the judgments of conviction entered against defendant-
appellee/cross-appellant James Diamond, arguing that the trial court erred in
failing to impose indefinite sentences on Diamond’s felonious assault convictions in
accordance with the Reagan Tokes Law. Diamond cross-appeals, arguing that his
consecutive sentences should be vacated because certain of the trial court’s
consecutive-sentence findings were not supported by the record. For the reasons
that follow, we reverse the trial court’s judgments in CR-21-660040-A, CR-21-
660391-A and CR-21-661467-A in part and remand those cases to the trial court for
resentencing in accordance with the Reagan Tokes Law. We otherwise affirm the
trial court’s judgments.
Factual Background and Procedural History
On September 19, 2022, the parties entered into a plea agreement in
four cases: Cuyahoga C.P. No. CR-21-660040-A (“660040”), Cuyahoga C.P. No. CR-
21-660391-A (“660391”), Cuyahoga C.P. No. CR-21-661467-A (“661467”) and
Cuyahoga C.P. No. CR-21-662024-A (“662024”). In 660040 and 661467, Diamond
pled guilty to an amended count of felonious assault in violation of R.C.
2903.11(A)(2), a second-degree felony. In 660391, Diamond pled guilty to an
amended count of felonious assault in violation of R.C. 2903.11(A)(1), a second-
degree felony, with a three-year firearm specification. In 662024, Diamond pled
guilty to one count of having weapons while under disability in violation of R.C.
2923.13(A)(2), a third-degree felony. The offenses related to incidents that occurred
from May 2, 2021, to May 26, 2021.
On October 24, 2022, the trial court sentenced Diamond to an
aggregate ten-year prison sentence. Finding the Reagan Tokes Law to be
unconstitutional, over the state’s objection, the trial court refused to apply it when
sentencing Diamond. In 660040, the trial court sentenced Diamond to two years
on the felonious assault count. In 660391, the trial court sentenced Diamond to
three years on the three-year firearm specification to be served consecutively to five
years on the underlying felonious assault charge. In 661467, the trial court
sentenced Diamond to two years on the felonious assault count, and in 662024, the
trial court sentenced Diamond to one year on the having weapons while under
disability count. The trial ordered that the eight-year sentence in 660391 be served
concurrently with the two-year sentence in 660040 and the one-year sentence in
662024 but consecutively to the two-year sentence in 661467.
In support of its imposition of consecutive sentences, the trial court
made the following findings at the sentencing hearing:
[A]ll of these cases happened in one month time. The felonious
assault, with the guy from the bar [661467] that happened May 2nd,
2021. On May 21st, two events that happened, one was the weapons
under disability [662024] * * * as well as the going into the individual’s
home, robbing and then shooting that individual [660391]. * * * The
final case happened on May 26th, 2021, that was the felonious assault,
where the defendant took his car and rammed it against a police car
[660040].
So the question is should these be run consecutive? It is clear
that basis for consecutive sentences are met here. There’s no question
about it. The defendant was on parole at the time of all of the offenses.
So let me just make the following findings: * * * [T]he Court finds that
a consecutive sentence 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 defendant’s conduct and to
the danger the defendant poses to the public. And additionally, the
Court finds that at the time of committing of these offenses, the
defendant was on post-release control.
The trial court incorporated these findings into its judgment entries
in 660391 and 661467.
The state filed notices of appeal, appealing the trial court’s judgments
of conviction in 660040, 660391 and 661467. This court, sua sponte, consolidated
the state’s appeals for briefing, hearing and disposition. The state raises the
following sole assignment of error for review:
The trial court plainly erred when [it] did not impose an indefinite
sentence pursuant to S.B. 201.
On March 1, 2023, this court granted Diamond’s motion for a delayed
appeal in 660040, 660391, 661467 and 662024. After briefing, this court, sua
sponte, consolidated Diamond’s appeal (appeal No. 112438) with the state’s appeals
(appeal Nos. 112143, 112144 and 112145) for disposition. Diamond raises the
following sole assignment of error for review:
The trial court’s findings that the seriousness of appellant’s conduct
and the danger that he poses to the community warrant consecutive
sentences for a total of ten years in prison are not clearly and
convincingly supported by the record.
Law and Analysis
Failure to Impose Indefinite Sentences under the Reagan Tokes
Law
R.C. 2953.08(B)(2) provides the state the right to appeal a sentence if
it is contrary to law. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce or otherwise modify a sentence or vacate a sentence and remand for
resentencing if it “clearly and convincingly” finds that (1) the record does not
support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e), or (C)(4) or 2929.20(I) or (2) the sentence is “otherwise contrary
to law.”
A sentence that fails to impose a mandatory provision is contrary to
law. State v. McCalpine, 8th Dist. Cuyahoga No. 110665, 2022-Ohio-842, ¶ 4, citing
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 21.
Under the Reagan Tokes Law, S.B. 201, qualifying first-and second-
degree felonies committed on or after March 22, 2019 are subject to the imposition
of indefinite sentences. Trial courts imposing prison terms on qualifying offenses
are required to impose a stated minimum prison term, as provided in R.C.
2929.14(A)(2)(a), and an accompanying maximum prison term, as provided in R.C.
2929.144(B). McCalpine at ¶ 5.
In 660040, 660391 and 661467, Diamond pled guilty to charges of
felonious assault in violation of R.C. 2911.12(A)(1) and (2), second-degree felonies
that were committed after March 22, 2019 and subject to the Reagan Tokes Law.
The state contends that the trial court erred in failing to impose indefinite sentences
on these qualifying second-degree felonies under the Reagan Tokes Law and that
the sentences on these counts should, therefore, be reversed.
Diamond argues that we should affirm the trial court’s judgments in
660040, 660391 and 661467 because the Reagan Tokes Law is unconstitutional. He
contends that the Reagan Tokes Law violates his constitutional right to a jury trial,
his right to due process and the separation-of-powers doctrine. In State v. Hacker,
Slip Opinion No. 2023-Ohio-2535, the Ohio Supreme Court addressed the
constitutionality of the Reagan Tokes Law. The court rejected the appellants’ claims
that the provisions of Reagan Tokes Law that allow the Ohio Department of
Rehabilitation and Correction to maintain an offender’s incarceration beyond the
minimum prison term imposed by a trial court violated the separation-of-powers
doctrine, the right to a jury trial or procedural due process. Id. at ¶ 1, 12-41.
Diamond’s arguments in this case do not present novel issues or any new theory
challenging the constitutional validity of any aspect of the Reagan Tokes Law left
unaddressed by the Ohio Supreme Court’s decision in Hacker; see also State v.
Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (en banc). Accordingly, we
reject Diamond’s constitutional challenges.
Because the trial court failed to impose indefinite sentences on
Diamond’s felonious assault convictions as required by the Reagan Tokes Law, these
sentences are contrary to law. The state’s assignment of error is sustained. We
reverse the trial court’s judgments in 660040, 660391 and 661467 in part and
remand those cases for resentencing in accordance with the Reagan Tokes Law.
Imposition of Consecutive Sentences
Under Ohio law, sentences are presumed to run concurrently unless
the trial court makes the required findings set forth in R.C. 2929.14(C)(4). State v.
Reindl, 8th Dist. Cuyahoga Nos. 109806, 109807 and 109808, 2021-Ohio-2586,
¶ 14; State v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-Ohio-4070, ¶ 28. To
impose consecutive sentences, the trial court must find that (1) consecutive
sentences are “necessary to protect the public from future crime or to punish the
offender,” (2) “consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public” and (3) at
least 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 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.
R.C. 2929.14(C)(4).
The trial court must make each finding required under R.C.
2929.14(C)(4) at the sentencing hearing and then incorporate those findings into its
sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, syllabus.
A defendant can challenge consecutive sentences on appeal in two
ways. First, the defendant can argue that consecutive sentences are contrary to law
because the court failed to make the findings required by R.C. 2929.14(C)(4). See
R.C. 2953.08(G)(2)(b); Reindl at ¶ 13. Second, the defendant can argue that the
record “clearly and convincingly” does not support the court’s findings made
pursuant to R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Reindl at ¶ 13. A matter
is “clear and convincing” if it “produce[s] in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
In this case, Diamond concedes that the trial court made all of the
required findings under R.C. 2929.14(C)(4). He argues that his convictions should,
nevertheless, be vacated because the trial court’s findings “are not clearly and
convincingly supported by the record.”
As an initial matter, it is important to note that the clear and
convincing standard set forth in R.C. 2953.08(G)(2) is written in the negative. It
does not say that the trial court must have clear and convincing evidence to support
its findings. It states that an appellate court may increase, reduce or otherwise
modify a sentence or vacate a sentence and remand for resentencing if it “clearly and
convincingly” finds that the record does not support the trial court’s findings under
R.C. 2929.14(C)(4). Accordingly, the issue on appeal is not whether the trial court’s
consecutive-sentence findings are clearly and convincingly supported by the record,
as Diamond contends, but rather, whether the record clearly and convincingly does
not support one or more of the trial court’s consecutive-sentence findings.
Further, although Diamond asserts in his assignment of error that it
is the trial court’s finding regarding the “seriousness of appellant’s conduct and the
danger that he poses to the community” that is not adequately supported by the
record, Diamond makes no mention of the evidence supporting (or allegedly failing
to support) that finding in his argument in support of that assignment of error.
Instead, he asserts that (1) the trial court made a finding under R.C.
2929.14(C)(4)(b), i.e., that “[a]t 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,” and (2) Diamond
“couldn’t have been said to be committing a course of conduct when the crime he
was given consecutive sentences on were just multiple offenses.”
The trial court did not, however, make a finding under R.C.
2929.14(C)(4)(b). It made a finding under R.C. 2929.14(C)(4)(a), i.e., that Diamond
committed the offenses at issue while he was under postrelease control for a prior
offense — a fact Diamond does not dispute. Accordingly, we could simply disregard
Diamond’s assignment of error. See App.R. 12(A)(2) (“The court may disregard an
assignment of error presented for review if the party raising it * * * fails to argue the
assignment separately in the brief, as required under App.R. 16(A)”); App.R.
16(A)(7) (“The appellant shall include in its brief * * * [a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies.”).
Even if we were to consider Diamond’s assignment of error as stated,
i.e., that the trial court’s finding regarding the “seriousness of appellant’s conduct
and the danger that he poses to the community” was not adequately supported by
the record, we would find no error here. Following a thorough review of the record,
we cannot say that the record clearly and convincingly does not support the trial
court’s findings in support of the imposition of consecutive sentences.
As Diamond’s counsel acknowledged at the sentencing hearing,
Diamond had already been to prison six times, i.e., “in and out” of prison for
multiple offenses since 2004, prior to the commission of the crimes at issue. The
state documented his lengthy, and sometimes violent, criminal history in its
sentencing memorandum. The crimes here were serious, violent offenses against
strangers and included the use of firearms Diamond was not permitted to possess
due to prior felony convictions.
661467 involved a verbal altercation between Diamond and another
male at a bar that resulted in Diamond firing into a crowd (but not striking anyone).
Although Diamond claimed to have acted in self-defense, multiple witnesses told
police that Diamond had brandished a firearm while inside the bar and threatened
to shoot the man.
660391 involved an incident in which Diamond and another male
robbed a victim at his home, when his children and others were present. After the
victim was robbed, Diamond pushed him to the ground in his living room and shot
downward at him. As a result of the incident, the victim sustained serious injuries
to his leg.
In 660040, when police attempted to detain Diamond in a parking
lot, Diamond rammed a police car with his vehicle in an attempt to avoid arrest and
flee.
The trial court explained its concern regarding the seriousness of
Diamond’s conduct and the threat Diamond posed to the “regular public” as follows:
The cases that concern me most are the cases where the victims
you don’t know. Case 661467, is the one where there was an argument
in a bar, and it is alleged that the victim left out the back door and that
you followed him then shot at him. That bothers me, because you don’t
know him. It’s one thing when people know each other, and they get
into some sort of scuffle of some sort, and their tempers rage, but when
you pursue someone who you don’t even know, again, that bothers me.
The other thing that bothered me was Case No. 660391. Now,
according to what I read, and I’m not saying that I know your version,
but from what I read, it was provided to me the victim indicated he was
just on the porch playing video games, an enclosed porch playing video
games, and that you and another person came up to the door and you
said something he couldn’t really hear, so he opened the door, and you
guys robbed him and then shot him. He didn’t know you; you didn’t
know him. * * * But it bothered me that you didn’t know that person,
and that there was a crime committed on that person’s property where
it ended, not only was he robbed, but he was then shot. Didn’t die,
thank God, but he was shot.
***
I am concerned at the amount of — I don’t know, for lack of a better —
just violence. And I know that you’re speaking here that, oh, people,
I’m the victim. I’m the victim. These things are happening to me. And
that may be true, in reality. But on paper it really looks bad. It looks
really, really bad. * * *
I find that to the regular public, that you are a menace; that you are
somebody who [sic] the things that you are doing in public — you
shouldn’t be doing all of this. You shouldn’t be doing this.
After a thorough review of the record, we are not left with the “firm
belief or conviction” that the consecutive sentences the trial court imposed were
disproportionate to the seriousness of Diamond’s conduct and the danger he poses
to the public. R.C. 2953.08(G)(2); Cross, 161 Ohio St. 469, 120 N.E.2d 118, at
paragraph three of the syllabus.
Accordingly, Diamond’s assignment of error is overruled.
Judgment affirmed in part; reversed in part; 660040, 660391 and
661467 remanded for resentencing in accordance with the Reagan Tokes Law.
It is ordered that appellant/cross-appellee recover from appellee/cross-
appellant the costs herein taxed.
The court finds that there were reasonable grounds for these appeals.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
MARY J. BOYLE, J., CONCUR