State v. Dixon , 2015 Ohio 5277 ( 2015 )

[Cite as State v. Dixon, 2015-Ohio-5277.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-432
v. : (C.P.C. No. 14CR-2314)
Delaine D. Dixon, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 17, 2015
Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
for appellee.
Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Delaine D. Dixon, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of aggravated robbery with a
firearm specification and kidnapping. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 14, 2013, appellant and his accomplices gained entrance to an
occupied residence on Lillian Lane in Columbus, Ohio and held the residents captive as
they stole household goods. One of appellant's accomplices had befriended victim M.M.
and "that relationship was used to facilitate the offense." (Tr. 15.) M.M. was described by
the trial court as a "15-year-old victim who has cognitive delays and disabilities." (Tr. 14.)
No. 15AP-432 2
{¶ 3} According to the prosecutor, during the burglary, appellant and his
accomplices tied M.M. to a chair in his basement. Appellant then threatened M.M. while
pointing a shotgun at his face. Upon leaving the victims' residence with the stolen
property, appellant called his grandmother and instructed her to pick him up at a nearby
gas station. Police apprehended appellant and his accomplices as they were carrying the
stolen property into appellant's grandmother's home.
{¶ 4} On May 9, 2014, a Franklin County Grand Jury handed down a nine-count
indictment charging appellant with one count of aggravated burglary, two counts of
aggravated robbery, two counts of robbery, one count of kidnaping, and three counts of
theft. Each count included a firearm specification. On February 23, 2015, appellant
pleaded guilty to aggravated robbery with a firearm specification, in violation of R.C.
2911.01, a felony in the first degree, and kidnapping, in violation of R.C. 2905.01, also a
felony in the first degree. The trial court entered a nolle prosequi as to the remaining
counts in the indictment. Following a sentencing hearing, the trial court imposed a prison
term of eight years for aggravated robbery, plus a three-year firearm specification and
eight years for kidnapping. The trial court ordered appellant to serve each prison term
consecutively for an aggregate term of 19 years.
{¶ 5} On April 21, 2015, appellant filed a timely notice of appeal to this court from
the judgment of the trial court.
II. ASSIGNMENT OF ERROR
{¶ 6} Appellant asserts a single assignment of error as follows:
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY IMPROPERLY ORDERING HIM TO SERVE
CONSECUTIVE SENTENCES THAT CONTRAVENE OHIO'S
SENTENCING STATUTES AND PRINCIPLES AND
VIOLATE HIS DUE PROCESS RIGHTS.
III. STANDARD OF REVIEW
{¶ 7} R.C. 2953.08(G)(2) provides the appropriate standard of review "[o]n
appeals involving the imposition of consecutive sentences." State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, ¶ 28. R.C. 2953.08(G)(2) provides, in relevant part, as
follows:
No. 15AP-432 3
The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court
for resentencing. The appellate court's standard for review is
not whether the sentencing court abused its discretion. The
appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
IV. LEGAL ANALYSIS
{¶ 8} In his sole assignment of error, appellant contends that the trial court did
not make all the factual findings required by R.C. 2929.14(C)(4) when it imposed a
consecutive term of imprisonment. We disagree.
{¶ 9} At the outset of our discussion, we note that the trial court did not impose
the maximum term of imprisonment either for the aggravated robbery conviction or the
kidnapping conviction. We also note that Ohio law required the trial court to impose a
consecutive three-year prison term for the firearm specification. R.C. 2929.14(E)(1)(a).
Thus, the issue in this case is whether the trial court erred when it ordered consecutive
sentences of eight years in prison for aggravated robbery and eight years in prison for
kidnapping.
{¶ 10} R.C. 2929.14(C)(4) provides, in relevant part, as follows:
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:
***
No. 15AP-432 4
(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.
{¶ 11} In order to comply with R.C. 2929.14(C)(4), a trial court imposing
consecutive sentences must make at least three distinct findings: " '(1) that consecutive
sentences are necessary to protect the public from future crime or to punish the offender;
(2) 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 (3) that one of
the subsections (a), (b) or (c) applies.' " State v. Hillman, 10th Dist. No. 14AP-252, 2014-
Ohio-5760, ¶ 63, quoting State v. Price, 10th Dist. No. 13AP-1088, 2014-Ohio-4696, ¶ 31,
citing Bonnell.
{¶ 12} In Bonnell, the Supreme Court of Ohio held that a sentencing court is not
required "to give a talismanic incantation of the words of the statute, provided that the
necessary findings can be found in the record and are incorporated into the sentencing
entry." Id. at ¶ 37. The court further stated that "a word-for-word recitation of the
language of the statute is not required, and as 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 ¶ 29.
{¶ 13} With regard to the finding that "consecutive service is necessary to protect
the public from future crime or to punish the offender," we note that the trial court made
the following statement in response to appellant's claim that he did not understand the
seriousness of the offense:
How is it that you did not know that you should not hold a
shotgun to somebody's head? You didn't know that was a bad
idea?
***
You did not understand that you could not break into
someone's home with a shotgun, tie that person to a chair,
and threaten them with that gun? You didn't understand how
serious that was?
No. 15AP-432 5
***
Not only did you attempt to get away with it, but as [the
prosecutor] has pointed out, you called your grandmother to
pick you up at a gas station at Livingston and Hamilton and
put the stolen items in your car when your grandmother asked
you not to do that, you decided to do it anyway. It could have
been that you also got her in trouble based on your
shenanigans and foolishness.
You are completely disrespectful of everyone with whom you
interact.
(Tr. 8, 9, 12-13.)
{¶ 14} In our opinion, the trial court's comments regarding appellant's lack of
understanding as to the seriousness of his criminal conduct and its finding that appellant
is completely disrespectful of anyone with whom he interacts equates to a finding that
consecutive service is necessary to protect the public from future crime or to punish
appellant. See Bonnell at ¶ 33 ("We can discern from the trial court's statement that
Bonnell had 'shown very little respect for society and the rules of society' that it found a
need to protect the public from future crime or to punish Bonnell."). We note that the
trial court made the additional finding that "I cannot say with certainty that this set of the
circumstances is not likely to recur." (Tr. 18.) Although the trial court did not use the
phrase "consecutive service is necessary to protect the public from future crime," the trial
court's statements at the sentencing hearing can be reasonably construed as a finding by
the trial court that appellant will likely reoffend, thus justifying a consecutive term of
imprisonment. Id. at ¶ 22.
{¶ 15} As noted above, the Supreme Court in Bonnell stated that the sentencing
court need not "give a talismanic incantation of the words of the statute, provided that the
necessary findings can be found in the record." Id. at ¶ 37. In this instance, we can
discern from the transcript of the sentencing hearing that the trial court made the first
required finding under R.C. 2929.14(C)(4).
{¶ 16} With regard to the required finding that "consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger the
No. 15AP-432 6
offender poses to the public," we note that the trial court made the following statements at
the sentencing hearing:
So, * * * I have to look at some other issues to determine what
sentence makes sense to me. I do not find that you were a
follower in this instance. I find that you were primary in
facilitating the terror that young [M.M.] had to endure by
ensuring that [he] was tied up, by holding a weapon at his
face, by calling your grandmother to meet you after you had
committed this crime to take the stolen property back to her
home, by putting her in a very difficult set of circumstances.
You are not just a follower. You were more of a leader
through all of this. * * * I believe that the minimum sanctions
would demean the seriousness of this offense.
(Tr. 18.)
{¶ 17} The trial court also mentioned the "need to ensure the safety of the
community." (Tr. 19.) When we consider the trial court's statements regarding the
seriousness of appellant's criminal conduct and the need "to ensure the safety of the
community," in combination with the trial court's declaration that "minimum sanctions
would demean the seriousness of the offense," we conclude that the trial court made a
finding that consecutive sentences are "not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the public." (Tr. 18, 19.)
Bonnell at ¶ 22. Though the trial court did not employ the precise terminology of the
statute, several appellate courts, including this court, have found similar language to be
sufficient. See, e.g., State v. Adams, 10th Dist. No. 13AP-783, 2014-Ohio-1809, ¶ 21
(sentencing court's "use of the phrase 'does not discredit the conduct or danger imposed
by the defendant' shows that the trial court employed the required proportionality
analysis in imposing a consecutive sentence * * * even though the trial court eschewed the
phrase 'not disproportionate' "); Hillman at ¶ 68 (trial court's concerns about "any lesser
sentence being demeaning to the seriousness of the offense because there were 'several
different victims' in this case" amounts to a finding regarding the proportionality of
consecutive sentences). As noted above, the Supreme Court in Bonnell determined that "a
word-for-word recitation of the language of the statute is not required" to demonstrate
compliance with R.C. 2929.14(C)(4). Id. at ¶ 29.
No. 15AP-432 7
{¶ 18} Moreover, the trial court also made the following findings:
I am dealing with a 15-year-old victim who has cognitive
delays and disabilities and impairments * * *.
***
One of your codefendants was the alleged best friend of the
victim, and that relationship was used to facilitate the offense,
and * * * these crimes were committed as part of an organized
criminal activity.
(Tr. 14, 15.) Based on these findings, the trial court concluded that appellant's criminal
conduct was "more serious than conduct normally constituting [these] offenses." (Tr. 14.)
{¶ 19} The trial court's statements regarding the relative vulnerability of
appellant's victim and the organized nature of appellant's criminal activity can be
reasonably construed as a finding that consecutive sentences were necessary to protect
the public from the danger appellant's criminal conduct poses to the public. See State v.
Hargrove, 10th Dist. No. 15AP-102, 2015-Ohio-3125, ¶ 13 (trial court's statement that
appellant's fraudulent charity scheme "prey[ed] upon * * * elderly sympathetic" victims
who "were not rich people," supports the trial court's determination that consecutive
sentences are not disproportionate to the danger appellant poses to the public). Similarly,
the trial court's conclusion that appellant's criminal conduct was "more serious" than the
conduct normally constituting the offenses indicates that the trial court engaged in the
required proportionality analysis. (Tr. 14.) See id. at ¶ 17 ("The trial court's finding that
appellant's criminal conduct was the worst and most serious type punishable under R.C.
1716.14 is indicative of the requisite proportionality analysis."). In consideration of the
sentencing transcript and our precedent on this issue, we conclude that the trial court
made the second required finding under R.C. 2929.14(C)(4).
{¶ 20} In addition to the findings required under R.C. 2929.14(C)(4), the trial court
must support its decision to impose consecutive service by making one of the findings
described in R.C. 2929.14(C)(4)(a) to (c). Hillman at ¶ 63; Price at ¶ 31. Under the
circumstances of this case, the relevant finding is described in R.C. 2929.14(C)(4)(b) as
follows: "[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
No. 15AP-432 8
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."
{¶ 21} In this case, the trial court specifically found that "[b]ecause these offenses
occurred as a continuing course of conduct, those sentences are going to be imposed
consecutively." (Tr. 19.) With regard to the great or unusual harm to the victim, the trial
court stated: "I can't imagine how that young man must have felt to have a shotgun
pointed at him and threatened, essentially, that if he continued to look at you, Mr. Dixon,
I don't know what you might have done." (Tr. 15.) In Price, one of the issues for this
court was whether the sentencing court made the finding required by R.C.
2929.14(C)(4)(b)(4) before imposing a consecutive sentence. In ruling that the
sentencing court made the required finding, this court reasoned as follows:
[T]he trial court specifically stated: "I needed to make the
sentence sever[e] enough to show how serious what it was
that you did. * * * I can't imagine what it's like to have a gun
pointed at your head." This comment shows that the trial
judge considered the nature of the harm appellant caused to
his numerous victims as "great and unusual" and that he
considered that harm in determining that a consecutive
sentence was appropriate. * * * The record in this case
confirms that appellant pointed a handgun at the head of
multiple victims during the commission of the robberies on
August 26, 2012.
Id. at ¶ 40.
{¶ 22} The trial court in this case made virtually the same statement at appellant's
sentencing hearing as the sentencing court did in Price. We agree with our prior
determination in Price and find that the trial court's statement to appellant at the
sentencing hearing amounts to a finding that the harm to the victim from the aggravated
robbery and kidnapping was so great or unusual that no single prison term for any of
those two offenses adequately reflects the seriousness of appellant's conduct.
Accordingly, it is our determination that the trial court made the third required finding
before imposing consecutive sentences.
{¶ 23} Because the transcript of the sentencing hearing reveals that the trial court
made the findings required by R.C. 2929.14(C)(4), we may not overturn the imposition of
No. 15AP-432 9
consecutive sentences unless we find, clearly and convincingly, that the record does not
support the sentencing court's findings or that the sentence is contrary to law. R.C.
2953.08(G); Adams at ¶ 7. The "clearly and convincingly" standard under R.C.
2953.08(G)(2) "is written in the negative which means that it is an 'extremely deferential
standard of review.' " Hargrove at ¶ 22, quoting State v. Bittner, 2d Dist. No. 2013-CA-
116, 2014-Ohio-3433, ¶ 9. See also State v. Venes, 8th Dist. No. 98682, 2013-Ohio-1891,
¶ 21; State v. Moore, 11th Dist. No. 2014-G-3183, 2014-Ohio-5182, ¶ 29; State v. Hale, 5th
Dist. No. 14-CA-00014, 2014-Ohio-5028.
{¶ 24} Because this case involves a conviction on a plea of guilty, the trial court did
not conduct an evidentiary hearing. The prosecutor's recitation of the facts at the
sentencing hearing, to which appellant did not object, contains support for the trial court's
findings of fact. Accordingly, it is our determination that the record contains ample
support for the trial court's factual findings.
{¶ 25} Appellant next contends that the aggregate sentence of 19 years is contrary
to law because the trial court failed to comply with the requirements of R.C. 2929.11(A).
We disagree.
{¶ 26} R.C. 2929.11(A) provides as follows:
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 and to
punish 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.
{¶ 27} In State v. Allen, 10th Dist. No. 10AP-487, 2011-Ohio-1757, we made the
following relevant observations regarding the felony sentencing guidelines:
A trial court must consider the "overriding purposes" of
sentencing, which, under R.C. 2929.11(A), "are to protect the
public from future crime by the offender and others and to
punish the offender." And, the court must apply R.C. 2929.12,
No. 15AP-432 10
which requires a court to consider the seriousness of the
offense and whether the offender is a recidivist. Appellant
argues that the trial court did not apply those statutes. In the
sentencing entry, however, the court stated that it "considered
the purposes and principles of sentencing set forth in R.C.
2929.11 and the factors set forth in R.C. 2929.12." That
language in a judgment entry belies a defendant's claim that
the trial court failed to consider the purposes and principles
in sentencing, pursuant to R.C. 2929.11(A) * * *. State v.
Small, 10th Dist. No. 09AP-1175, 2010-Ohio-5324, ¶ 16.
(Emphasis added.) Id. at ¶ 22.
{¶ 28} The trial court expressly referred to the statutory requirements at the
sentencing hearing. Additionally, the trial court stated in its sentencing entry that it
"considered the purposes and principles of sentencing set forth in R.C. 2929.11." Id.
Thus, the trial court's statements both in the judgment entry and at the sentencing
hearing belie appellant's claim that the trial court failed to consider the purposes and
principles set out in R.C. 2929.11(A) when it sentenced him to an aggregate prison term of
19 years. Allen. See also State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 7.
Although appellant disagrees with the weight the trial court gave to certain factors set out
in R.C. 2929.11(A), the record shows that the trial court considered and weighed all the
relevant factors before imposing sentence. Accordingly, the sentence is not contrary to
law. Allen; Ayers. See also R.C. 2953.08(G)(2)(b).
{¶ 29} For the foregoing reasons, we hold that the trial court did not err when it
sentenced appellant to an aggregate prison term of 19 years. Accordingly, appellant's sole
assignment of error is overruled.
{¶ 30} Although we have overruled appellant's assignment of error, the Bonnell
case holds that Ohio's consecutive sentencing laws require the trial court to (1) make the
findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing, and (2) incorporate
its findings into its sentencing entry. Id. at ¶ 30. In this case, the trial court made the
required R.C. 2929.14(C)(4) findings at the sentencing hearing but did not incorporate its
findings into the judgment entry. The relevant portion of the trial court's judgment entry
states only that "the Court has weighed the factors as set forth in the applicable provisions
of R.C. 2929.13 and R.C. 2929.14." (Apr. 2, 2015 Judgment Entry, 2.) Pursuant to
No. 15AP-432 11
Bonnell, "[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."
Id. at ¶ 30. Consistent with Bonnell and the precedent of this court, we shall remand this
case to the trial court for a nunc pro tunc judgment entry incorporating the R.C. 2929.14
findings stated on the record. Hargrove at ¶ 25; Hillman at ¶ 71; Price at ¶ 42.
V. CONCLUSION
{¶ 31} Having overruled appellant's sole assignment of error, but having found
that the trial court's judgment entry contains a clerical error, we affirm the judgment of
the Franklin County Court of Common Pleas and remand the matter for the issuance of a
nunc pro tunc judgment entry consistent with this decision and the rule of law in Bonnell.
Judgment affirmed;
cause remanded with instructions.
BROWN, P.J., and HORTON, J., concur.
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