State v. Greene ( 2014 )

[Cite as State v. Greene, 2014-Ohio-3713.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100542
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
COURTNEY GREENE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-568641-A
BEFORE: Stewart, J., E.A. Gallagher, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: August 28, 2014
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building
526 Superior Avenue, Suite 940
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary Weston
Mahmoud Awadallah
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Courtney Greene pleaded guilty to obstruction of justice
and involuntary manslaughter in connection with offenses in which she participated with
her codefendant boyfriend. On appeal, Greene argues that the trial court imposed
consecutive sentences without making the necessary findings. She also argues that the
court erred by imposing a split sentence that included both a prison term and community
control sanctions, where the sanctions automatically included local incarceration. We
find no error and affirm the judgment of the trial court.
{¶2} Greene was indicted in two cases. In June 2013, she pleaded guilty in one of
the cases to two counts of obstruction of justice and one count of involuntary
manslaughter, all third-degree felonies. In exchange for her plea and her agreement to
testify against her boyfriend, the state nolled the remaining counts listed in the indictment,
and the second case was nolled in its entirety with reference to Greene only. Also as part
of her plea agreement, the manslaughter charge carried mandatory prison time, and
Greene agreed to a minimum four years in prison and that none of her convictions would
merge for sentencing purposes.
{¶3} Prior to the court accepting her plea, Greene told the court that she was on
probation for a 2008 attempted felonious assault conviction at the time the offenses in
these two cases were committed. She also told the court that she had a petty theft
conviction in Berea. The court advised her that she could face additional consequences
if the court found her to be in violation of her probation as a result of new criminal
convictions. The court repeated the plea agreement that the state had reached with
Greene and stated that it was within the discretion of the court to reject the agreement and
impose a harsher penalty. The court accepted Greene’s plea and found her guilty of the
three offenses.
{¶4} Greene appeared in court in October 2013 for sentencing on these convictions
and for a probation revocation hearing relating to community controlled sanctions
imposed for the 2008 attempted felonious assault conviction. The court found Greene in
violation of her community control sanctions, terminated her community control
supervision, and imposed a sentence of three years in prison for attempted felonious
assault. The court also sentenced her to three years for involuntary manslaughter and to
community control sanctions for the two obstruction of justice convictions. The court
ordered the attempted felonious assault and involuntary manslaughter sentences to run
consecutively for a total of six years in prison.
{¶5} In Greene’s first assigned error, she argues the court imposed consecutive
sentences without making the proper statutory findings. Under R.C. 2929.14(C)(4), a trial
court may impose consecutive multiple prison terms for convictions on multiple offenses
where the court makes the necessary statutory findings. This court has adopted a strict
approach when reviewing consecutive sentencing. State v. Nia, 8th Dist. Cuyahoga No.
99387, 2014-Ohio-2527,  13. We require the trial court to make separate and distinct
findings apart from any findings relating to the purposes and goals of criminal sentencing.
Id. See State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891. 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.
{¶6} The transcript demonstrates that at the sentencing hearing the court made
the following statement:
You are found to be a probation violator in 513687. That three years is
imposed consecutive to three years in Count 3 of the pending case.
I’ll note, for the record, pursuant to 2929.14, (B)[sic](4), that this Court
believes that the maximum term should be imposed, but the consecutive
terms imposed are necessary to protect the public, to punish the offender.
And it is not a disproportionate sentence.
The court satisfied the first prong of the analysis when it found that the public needed to
be protected from Greene and that consecutive terms were being imposed to punish her.
Regarding the second part of the analysis, although barely addressed, the court noted that
a consecutive sentence is not disproportionate to Greene’s conduct.1 Lastly, the court
noted that Greene was under community control sanctions for her attempted felonious
assault conviction at the time she was convicted of obstruction of justice and involuntary
manslaughter.
{¶7} We find that the trial court satisfied the requirements of R.C. 2929.14(C)(4).
Greene’s first assignment of error is overruled. However, we note that the recent Ohio
Supreme Court decision in State v. Bonnell, Slip Opinion No. 2014-Ohio-3177, requires
that the trial court not only make the statutory findings to impose consecutive sentences,
but that the court also incorporate those findings into its sentencing entry. Id. at syllabus.
The court stated that the trial court’s failure to do so is a clerical mistake and does not
render the sentence contrary to law, therefore, the omission “may be corrected * * *
through a nunc pro tunc entry to reflect what actually occurred in open court.” Id. at ¶
30, citing State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-111, 967 N.E.2d 718, ¶ 15. In
1
Although the court did not specifically state that the sentence is not
disproportionate to the seriousness of Greene’s conduct and the danger she poses to
the public, to reverse and remand in this case would be tantamount to merely
requiring the “magic” words.
light of Bonnell, we remand the case for the limited purpose of having the trial court
incorporate nunc pro tunc its consecutive- sentence findings in the sentencing entry.
{¶8} In Greene’s second assigned error, she argues that it was improper for the
trial court to impose both a prison sentence and community control sanctions, which
included jail time, for the same offense.
{¶9} This court has held that a trial court cannot sentence a defendant to both
community control and prison for the same offense. State v. Redd, 8th Dist. Cuyahoga
No. 98064, 2012-Ohio-5417,  7, citing State v. Jacobs, 189 Ohio App. 3d 283,
2010-Ohio-4010, 938 N.E.2d 79, ¶ 5 (8th Dist.). However, that is not what happened in
this case.
{¶10} The court did not impose a split sentence or sentence Greene to prison time
and community control sanctions for the same offense. Greene was sentenced on four
different infractions — two obstruction of justice convictions, a conviction for
involuntary manslaughter, and a conviction for attempted felonious assault. The court
imposed community control sanctions, including jail time at a Cuyahoga County jail on
the obstruction of justice convictions. The court ordered this sentence to be served upon
completion of the three-year prison term on the probation violation relating to the
attempted felonious assault conviction, and the three-year sentence for involuntary
manslaughter. We therefore overrule Greene’s second assigned error.
{¶11} Judgment affirmed and remanded.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas to carry this judgment into execution. Case remanded
to the trial court for correction of sentencing 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.
________________________________________
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR