State v. Morris , 2016 Ohio 7614 ( 2016 )

[Cite as State v. Morris, 2016-Ohio-7614.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104013
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM MORRIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART;
VACATED IN PART; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-13-577354, CR-14-588516 and CR-15-597117
BEFORE: E.A. Gallagher, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 3, 2016
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Zachary M. Humphrey
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant William Morris appeals the consecutive sentences
imposed after (1) he pled guilty, in separate cases, to charges of failure to verify address
and escape arising out of his failure to comply with his reporting obligations as a
registered sex offender and while on postrelease control and (2) was found to have
violated community control sanctions in a third case. For the reasons that follow, we
affirm the trial court’s imposition of consecutive sentences on the failure to verify address
and escape convictions. However, as to the community control violation, we vacate the
sentence imposed by the trial court and remand the matter for resentencing.
Factual and Procedural Background
{¶2} On December 11, 2013, Morris pled guilty to failure to verify his address in
violation of R.C. 2950.06(F) (Case No. CR-13-577354). The trial court imposed a
sentence of two years of community control sanctions. At sentencing, the trial court
indicated that if Morris violated his community control sanctions he would be subject to a
sentence of 24 months in prison and three years of discretionary postrelease control.
{¶3} On August 28, 2014, Morris was again charged with failure to verify his
address in violation of R.C. 2950.06(F) (Case No. CR-14-588516).1 On July 15, 2015,
Morris was charged with escape for failing to comply with his reporting obligations for
The failure to verify address that gave rise to Morris’ conviction in Case No. CR-13-577354
1
occurred in June 2013. The failure to verify address that gave rise to Morris’ conviction in Case No.
CR-14-588516 occurred in June 2014.
postrelease control arising out of a 2010 conviction for attempted failure to verify his
address (Case No. CR-15-597117). In December 2015, Morris pled guilty to the failure
to verify address charge in Case No. CR-14-588516 and the escape charge in Case No.
CR-15-597117. The trial court sentenced Morris to 12 months in prison on each of the
offenses. Based on these convictions, the trial court found that Morris had violated the
terms of his community control in Case No. CR-13-577354 and sentenced him to 24
months in prison. The trial court ordered that all three sentences be served
consecutively, imposing an aggregate prison sentence of four years, along with
postrelease control for up to three years.
{¶4} Morris appealed his sentences, raising the following two assignments of error
for review:
ASSIGNMENT OF ERROR NO. I:
The trial court erred in denying William Morris his right to allocute at his
sentencing hearing on his community control violation hearing in Case No.
588516.
ASSIGNMENT OF ERROR NO. II:
The trial court imposed a sentence contrary to law and violated Mr. Morris’
right to due process when it ordered consecutive sentences without making
the requisite statutory findings supported by the record.
Law and Analysis
Right to Allocute at Sentencing Hearing on Community Control Violation
{¶5} In his first assignment of error, Morris argues that the trial court erred in
denying him a right to allocute prior to imposing the sentence for his violation of
community control sanctions.
{¶6} Crim.R. 32(A)(1) provides, in relevant part:
At the time of imposing sentence, the court shall * * * [a]fford counsel an
opportunity to speak on behalf of the defendant and address the defendant
personally and ask if he or she wishes to make a statement in his or her own
behalf or present any information in mitigation of punishment.
{¶7} Crim.R. 32(A) confers upon a defendant “an absolute right of allocution.”
State v. Green, 90 Ohio St.3d 352, 358, 738 N.E.2d 1208 (2000). It also imposes an
affirmative obligation on the trial court to “ask” a defendant “if he or she wishes to”
exercise that right. State v. Keith, 8th Dist. Cuyahoga Nos. 102981, 103006, and
103009, 2016-Ohio-3056, ¶ 31. The right cannot be waived before the trial court has
asked the defendant if he or she wishes to speak in allocution. State v. Campbell, 90
Ohio St.3d 320, 324-325, 738 N.E.2d 1178 (2000); Keith at ¶ 30.
{¶8} “The purpose of allocution is to allow the defendant an opportunity to state
for the record any mitigating information which the judge may take into consideration
when determining the sentence to be imposed.” State v. Turjonis, 7th Dist. Mahoning
No. 11 MA 28, 2012-Ohio-4215, ¶ 6. The right of allocution belongs to the defendant
himself or herself. State v. Matthews, 1st Dist. Hamilton No. C-140663,
2015-Ohio-5075, ¶ 12, citing State v. Thompson, 1st Dist. Hamilton No. C-120516,
2013-Ohio-1981, ¶ 5. “It is not enough for the trial court to give defense counsel the
opportunity to speak on the defendant’s behalf.” Matthews at ¶ 12, citing Green, 90
Ohio St.3d at 359-360; see also State v. Crawley, 1st Dist. Hamilton Nos. C-150403 and
C-150422, 2016-Ohio-658, ¶ 10 (“[T]he notion counsel’s argument may substitute for the
defendant’s allocution has been rejected: ‘The most persuasive counsel may not be able to
speak for a defendant as the defendant might, with halting eloquence, speak for
himself.’”), quoting Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d
670 (1961). “Trial courts must painstakingly adhere to Crim.R. 32, guaranteeing the
right of allocution. A Crim.R. 32 inquiry is much more than an empty ritual: it
represents a defendant’s last opportunity to plead his case or express remorse.” Green,
90 Ohio St.3d at 359-360.
{¶9} At issue in this case is whether a defendant who was afforded the right of
allocution at his or her original sentencing hearing also has a right of allocution at the
sentencing hearing for his or her violation of community control when the trial court
imposes the prison term that it stated at the original sentencing hearing it would impose if
the defendant violated community control.
{¶10} It is undisputed that the trial court did not give Morris an opportunity to
exercise his right to allocution at the community control violation hearing. At the
community control violation hearing, the trial court gave both the state and defense
counsel an opportunity to address the court prior to sentencing Morris — neither of whom
offered anything beyond what they had said with respect to sentencing on the failure to
verify address and escape offenses in Case Nos. CR-14-588516 and CR-15-597117.
However, the trial court denied Morris an opportunity to make a statement on his own
behalf or to himself present any information in mitigation of punishment, stating that
Morris had no right to allocution prior to sentencing for a community control violation:
THE COURT: All right. With regard to probation violation or community
control the defendant does not have a right to allocution. He’s already
been sentenced on that. I’m not going to give you defendant [a] right to
allocution on that because he doesn’t have it according to the courts of
appeals.
The trial court then proceeded to impose the sentence for Morris’ community control
violation that it had informed Morris, at the original sentencing hearing, it could impose if
he violated community control — i.e., 24 months in prison — and imposed that sentence
consecutively to the sentences imposed for the failure to verify address and escape
offenses in Case Nos. CR-14-588516 and CR-15-597117.
{¶11} As the parties point out, there is a split among the districts on this issue.
Morris urges us to follow the First District and find that a defendant has a right to
allocution when he or she is being sentenced for a community control violation. See,
e.g., State v. Jackson, 1st Dist. Hamilton No. C-140384, 2015-Ohio-2171, ¶ 8; see also
State v. Osume, 1st Dist. Hamilton No. C-140390, 2015-Ohio-3850, ¶ 18-25; State v.
McAfee, 1st Dist. Hamilton No. C-130567, 2014-Ohio-1639, ¶ 14. The state urges us to
follow this court’s prior decision in State v. Henderson, 8th Dist. Cuyahoga No. 42765,
1981 Ohio App. LEXIS 10890, *12 (June 18, 1981) — in which we rejected the
defendant’s argument that he had a right to allocution prior to sentencing at his probation
revocation hearing — and decisions from the Third, Seventh and Eleventh Districts that
have held a defendant has no right to allocution prior to sentencing at a probation
revocation or community control violation hearing. See, e.g., State v. Michael, 3d Dist.
Henry No. 7-13-05, 2014-Ohio-754, ¶ 29-32; State v. Favors, 7th Dist. Mahoning No.
08-MA-35, 2008-Ohio-6361, ¶ 13, 15-19; Turjonis, 2012-Ohio-4215, at ¶ 13; State v.
Payne, 11th Dist. Ashtabula No. 2015-A-0007, 2015-Ohio-5073, ¶ 29-34; see also State
v. Krouskoupf, 5th Dist. Muskingum No. CT2005-0024, 2006-Ohio-783, ¶ 15.
{¶12} Since these cases were decided, the Ohio Supreme Court issued its decision
in State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965. In Heinz, the
Ohio Supreme Court held that the county prosecuting attorney has a right to notice of, and
the opportunity to represent the state at, community control violation proceedings. Id. at
¶ 2, 19, 21, 23. In reaching this conclusion, the court distinguished community control
violation hearings from probation violation and revocation hearings, noting, among other
differences, that following a community control violation hearing, the trial court conducts
a “second sentencing hearing” to which Crim.R. 32(A)(2) applies:
Effective July 1, 1996, the General Assembly enacted Am.Sub.S.B. No. 2,
146 Ohio Laws, Part IV, 7136 to revise Ohio’s felony sentencing statutes,
and among other changes, “community control replaced probation as a
possible sentence under Ohio’s felony sentencing law.” (Emphasis
added.) State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d
1201, ¶ 16. Unlike probation, which is a period of time served during
suspension of a sentence, community control sanctions are imposed as the
punishment for an offense at a sentencing hearing. R.C. 2929.01(E); R.C.
2929.01(FF). * * *
The revocation of community control is an exercise of the sentencing
court’s criminal jurisdiction, and pursuant to R.C. 2929.15(B)(1), the court
may extend the term of the offender’s community control or impose a more
restrictive sanction or a prison term if the conditions of community control
are violated. As we explained in State v. Fraley, 105 Ohio St.3d 13,
2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, “[f]ollowing a community control
violation, the trial court conducts a second sentencing hearing. At this
second hearing, the court sentences the offender anew and must comply
with the relevant sentencing statutes.” And at a sentencing hearing, “[t]he
state has the right to be present * * *.” State v. Simpkins, 117 Ohio St.3d
420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 44, fn. 2 (Lanzinger, J.,
dissenting).
Thus, in contrast to probation violation and revocation proceedings as
described by the court in Gagnon, community control violation hearings are
formal, adversarial proceedings. Moreover, at community control
violation hearings, the Rules of Criminal Procedure afford an offender the
right to counsel, Crim.R. 32.3(B), and pursuant to R.C. 2930.09, a victim in
the case has the right to be present. * * *
Furthermore, R.C. 2929.19(A) and Crim.R. 32(A)(2) direct the trial court at
the time of imposing sentence to afford the prosecuting attorney the right to
appear and speak on behalf of the state, because it has an interest in
ensuring that a proper sentence is imposed to punish and rehabilitate the
offender while protecting the public, R.C. 2929.11(A). These same
statutes apply when the court decides the appropriate sentence for a
community control violation. Fraley at ¶ 17. * * *
Heinz at ¶ 14-16, 19.
{¶13} Crim.R. 32(A)(2) provides that “[a]t the time of imposing sentence, the
court shall * * * [a]fford the prosecuting attorney an opportunity to speak.” Because,
under Heinz, Crim.R. 32(A)(2) “appl[ies] when the court decides the appropriate sentence
for a community control violation,” Heinz at ¶ 19, Crim.R. 32(A)(1), which requires the
trial court, “[a]t the time of imposing sentence,” to “address the defendant personally and
ask if he or she wishes to make a statement in his or her own behalf or present any
information in mitigation of punishment,” must also apply when sentencing a defendant
for a community control violation. Accordingly, the trial court erred in denying Morris a
right of allocution at the sentencing hearing on his community control violation.
{¶14} The state argues that even if Morris had a right of allocution at the
community control violation hearing, he was not denied that right because the trial court
gave Morris an opportunity to personally address the trial court at the sentencing hearing
on the failure to verify address and escape offenses, which immediately preceded the
community control violation hearing, and the trial court indicated it would “incorporate”
the “arguments” made at that sentencing hearing into the community control violation
hearing. At the sentencing hearing in Case Nos. CR-14-588516 and CR-15-597117, the
trial court stated:
THE COURT: At this point it’s my intention to go directly to sentencing on
these matters. I will also follow up with a community control violation
hearing on the 577354 case. I’ll incorporate all of your arguments from
sentencing into the PV as well.
{¶15} After the state and defense counsel made their respective arguments to the
trial court regarding appropriate sentencing on the failure to verify address and escape
offenses, the trial court gave Morris an opportunity to address the court:
THE COURT: Mr. Morris, anything you like to add before I impose
sentence?
THE DEFENDANT: No sir.
{¶16} We do not agree that this exchange satisfied the trial court’s obligation
under Crim.R. 32(A)(1) to “address the defendant personally and ask if he or she wishes
to make a statement in his or her own behalf or present any information in mitigation of
punishment” at the time of imposing sentence on Morris’ community control violation.
Although the trial court indicated that it would incorporate all of the parties’ arguments
made during sentencing on the failure to verify and escape offenses in Case Nos.
CR-14-588516 and CR-15-597117 into the community control violation hearing, it did
not indicate that any statements made by Morris at sentencing on the failure to verify
address and escape charges would be considered in sentencing him on his community
control violation. To the contrary, the trial court expressly stated that it was “not going
to give [Morris] a right to allocution on that,” mistakenly believing that Morris did not
have a right to allocution at the sentencing hearing on his community control violation.
{¶17} Where, as here, “the trial court has imposed sentence without first asking
the defendant whether he or she wishes to exercise the right of allocution created by
Crim.R. 32(A), resentencing is required unless the error is invited error or harmless
error.” Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178, at paragraph three of the
syllabus; see also State v. King, 8th Dist. Cuyahoga No. 95972, 2011-Ohio-3985, ¶ 8
(defendant was entitled to remand for further resentencing where transcript from
resentencing hearing demonstrated that, while the trial court allowed defense counsel to
speak, it failed to personally address the defendant and afford her the opportunity to make
a statement or offer information in mitigation of punishment and there were “no factors
warranting a finding of invited or harmless error”).
{¶18} “Invited error” is more than “mere acquiescence” in the trial court’s failure
to comply with Crim.R. 32(A)(1). Campbell at 324. An error is “invited” only if the
defendant or defense counsel “‘induced’” or was “‘actively responsible’” for the trial
court’s error. Id., quoting State v. Kollar, 93 Ohio St. 89, 91, 112 N.E. 196 (1915).
There is nothing in the record that warrants a finding of invited error. We must,
therefore, consider whether the trial court’s failure to ask Morris if he wished to make a
statement in his own behalf or present any information in mitigation of punishment prior
to sentencing him on the community control violation was harmless error.
{¶19} “[A] trial court’s failure to address the defendant at sentencing is not
prejudicial in every case.” Campbell at 325; see also Crim.R. 52(A) (“[a]ny error,
defect, irregularity, or variance which does not affect substantial rights” is harmless error
and “shall be disregarded”). “The question of what constitutes harmless error in the
context of the right to allocution, however, is open to some question.” State v.
Thompson, 1st Dist. Hamilton No. 2013-Ohio-1981, ¶ 9; compare State v. Reynolds, 80
Ohio St.3d 670, 684, 687 N.E.2d 1358 (1998) (trial court’s failure to afford defendant a
right of allocution before sentencing him to the death penalty was harmless error because
defendant had made an unsworn statement during the penalty phase, had sent a letter to
the trial court and defense counsel made a statement on his behalf); State v. Woods, 8th
Dist. Cuyahoga No. 96487, 2011-Ohio-5825, ¶ 25 (trial court’s failure to provide
defendant an opportunity for allocution at his resentencing to impose postrelease control
was harmless error where defendant was provided an opportunity for allocution at the
original sentencing hearing, the same trial judge who originally sentenced defendant
conducted the resentencing, the defendant’s sentence remained unchanged and “[t]he
outcome was inevitable” because the trial court was statutorily required to impose five
years of postrelease control); State v. Reed, 10th Dist. Franklin No. 09AP-1164,
2010-Ohio-5819, ¶ 19 (trial court’s failure to provide defendant with right to allocution
was harmless where defendant had been sentenced to the minimum prison term allowed
and trial court imposed no fines and waived costs) with In re S.D., 8th Dist. Cuyahoga
No. 99763, 2014-Ohio-2528, ¶ 34-35 (denial of defendant’s right to allocute was not
harmless error where trial court considered defendant’s lack of remorse and “used [it]
against him” during disposition given that “[t]hose words of contrition the court was
looking for normally come, if at all, at the sentencing or dispositional hearing after the
defendant is given the opportunity to make a statement”); Jackson, 2015-Ohio-2171, at ¶
13-15 (denial of right to allocute was not harmless error where, when defendant attempted
to speak, trial court told him to be quiet two times, trial court did not afford defendant’s
counsel an opportunity to speak on his behalf before imposing sentence and “[g]iven that
the trial court imposed the maximum prison term,” it could not be said that “had the trial
court afforded [defendant] and his attorney the opportunity to present evidence in
mitigation, it would have had no positive effect upon his sentence”); State v. McComb, 2d
Dist. Montgomery Nos. 23604, 23605, 23606, 23607 and 23608, 2010-Ohio-4043, ¶ 9
(trial court’s error in failing to address defendant personally and inquire whether he
wished to speak on his own behalf prior to imposing sentence was not harmless because
defendant “did not have an alternative opportunity to address the court on the issue of
mitigation prior to the imposition of sentence”).
{¶20} Morris asserts that, if he had been permitted to allocute at the community
control violation hearing, he would have “remind[ed]” the trial court of the “mitigating
circumstances” from “two years earlier” that led the trial court to impose community
control sanctions at the original sentencing hearing. He indicates that “while [he] may
not have had mitigation with respect to his second two cases [Case Nos. CR-14-588516
and CR-15-597117], he clearly did have mitigation with respect to his first case,” noting
that at Morris’ original sentencing hearing in Case No. CR-13-577354, “the trial court
was receptive to Morris’ explanation that his difficulty verifying was attributable, in part,
to his homelessness and his being a victim of assault at the homeless shelter.”
{¶21} Where, as here, the trial court explicitly stated that it would “not * * * give
[Morris] a right to allocution” and Morris did not otherwise have an opportunity, prior to
sentencing, to personally address the trial court and offer mitigation information with
respect to his community control violation, we cannot state that the trial court’s failure to
ask the defendant whether he wished to make a statement in his own behalf or present any
information in mitigation of punishment prior to sentencing him on the community
control violation was harmless error.
{¶22} This is not a case in which the defendant received the minimum sentence for
his offense. Morris received the maximum sentence the trial court could impose for his
community control violation. We cannot know what, if anything, Morris might have
said if he had been given an opportunity to speak prior to sentencing on his community
control violation or how, if at all, any mitigation information he might have provided
could have impacted the sentence he ultimately received. As such, the trial court’s error
in denying Morris a right to allocute was not harmless. We sustain Morris’ first
assignment of error. We reverse the trial court’s judgment in part, vacate the sentence
imposed on Morris’ community control violation in Case No. CR-13-577354 only and
remand the matter to the trial court with instructions to resentence Morris on his
community control violation after providing him an opportunity to allocute in accordance
with Crim.R. 32(A)(1).
Imposition of Consecutive Sentences
{¶23} In his second assignment of error, Morris contends that his consecutive
sentences should be vacated because the trial court failed to make the requisite findings
for the imposition of consecutive sentences under R.C. 2929.14(C)(4) and that, even if the
trial court made such findings, the findings were not supported by the record. Based on
our disposition of Morris’ first assignment of error, we address his second assignment of
error only to the extent it alleges the trial court erred in imposing consecutive sentences
on the failure to verify address and escape offenses in Case Nos. CR-14-588516 and
2
CR-15-597117.
{¶24} We review felony sentences under the standard 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, ¶ 1, 21-22. Under R.C. 2953.08(G)(2), an appellate court may vacate the
imposition of consecutive sentences where it “clearly and convincingly” finds that (1)
2
As to Morris’ claim that the trial court erred in ordering that the sentence on his community
control violation in Case No. CR-13-577354 be served consecutively to the sentences imposed on the
failure to verify address and escape offenses in Case Nos. CR-14-588516 and CR-15-597117, his
assignment of error is moot.
the record does not support the trial court’s findings under R.C. 2929.14(C)(4) or (2) the
sentence is “otherwise contrary to law.” R.C. 2953.08(G)(2). If a trial court fails to
make the findings required under R.C. 2929.14(C)(4), the imposition of consecutive
sentences is contrary to law. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, ¶ 37; State v. Primm, 8th Dist. Cuyahoga No. 103548, 2016-Ohio-5237, ¶ 66,
citing State v. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 4.
{¶25} In Ohio, there is a presumption that prison sentences should be served
concurrently, unless the trial court makes the findings outlined in R.C. 2929.14(C)(4) to
warrant consecutive service of the prison terms. Primm at ¶ 64, citing State v. Cox, 8th
Dist. Cuyahoga No. 102629, 2016-Ohio-20, ¶ 3, and R.C. 2929.41(A). Pursuant to R.C.
2929.14(C)(4), in order to impose consecutive sentences, the trial court must find that
consecutive sentences are necessary to protect the public from future crime or to punish
the offender, that such sentences are not disproportionate to the seriousness of the
conduct and to the danger the offender poses to the public and that at least one of the
following also 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 postrelease 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.
{¶26} The trial court must both make the statutory findings required for
consecutive sentences at the sentencing hearing and incorporate those findings into its
sentencing entry. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at
syllabus. To make the requisite “findings” under the statute, “‘the [trial] court must note
that it engaged in the analysis’ and that it ‘has considered the statutory criteria and
specifie[d] which of the given bases warrants its decision.’” Id. at ¶ 26, quoting State v.
Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). A trial court need not give a
“talismanic incantation of the words of the statute” when imposing consecutive sentences,
“provided that the necessary findings can be found in the record and are incorporated in
the sentencing entry.” Bonnell at ¶ 37; see also State v. Thomas, 8th Dist. Cuyahoga No.
102976, 2016-Ohio-1221, ¶ 16 (“the trial court’s failure to employ the exact wording of
the statute does not mean that the appropriate analysis is not otherwise reflected in the
transcript or that the necessary finding has not been satisfied”).
{¶27} In this case, when imposing consecutive sentences, the trial court stated:
The law does favor concurrent terms. However, a judge is given
discretion in certain circumstances if necessary to protect and punish, if the
offense is — if the offense, sentence is not disproportionate to impose
consecutive sentences. As I said, this defendant was found guilty of
violent [crimes], rape and kidnapping, he has utterly failed the
responsibilities to the people of the State of Ohio to report his whereabouts
and make his whereabouts known. I believe he’s a danger to the public
doing that. I believe consecutive sentences in this matter are necessary to
protect and punish, are not disproportionate. The present crimes were
committed while defendant was on post-release control from the original
rape case in this matter and also while the defendant was on probation to
this court for the identical offense. And also the defendant’s criminal
history shows that consecutive terms are necessary in this matter for [the]
reasons I already stated to protect the public. Therefore, case numbers
597117, 577534 and 588516 will be run consecutive to one another for an
overall aggregate sentence of four years.
{¶28} In addition, the trial court’s December 17, 2015 sentencing journal entry
included the following findings:
The court imposes prison terms consecutively finding that consecutive
service is necessary to protect the public from future crime or to punish
defendant; that the consecutive sentences are not disproportionate to the
seriousness of defendant’s conduct and to the danger defendant poses to the
public; and that, the defendant committed one or more of the multiple
offenses while the defendant was awaiting trial or sentencing or was under
a community control or was under post-release control for a prior offense,
or defendant’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by
defendant.
{¶29} Morris concedes that the trial court made some of the findings required for
the imposition of consecutive sentences, including that consecutive sentences are
necessary to protect the public from future crime or to punish the offender and one or
more of the findings required under R.C. 2929.14(C)(4)(a)-(c). He does not dispute that
all of the requisite findings were included in the trial court’s sentencing entry. However,
Morris contends that the trial court failed to make the proportionality findings required
under R.C. 2929.14(C)(4) at the sentencing hearing. He argues that the trial court failed
to find that (1) consecutive sentences would not be disproportionate to the seriousness of
Morris’ conduct and (2) consecutive sentences would not be disproportionate to the
danger Morris poses to the public. He contends that the trial court’s determination that
consecutive sentences “are not disproportionate” without “specify[ing] what, if anything,
its proportionality finding was related to” did not satisfy its statutory obligation to find
that consecutive sentences are not disproportionate both to the “seriousness of the
conduct” and the “danger the offender poses to the public” prior to imposing consecutive
sentences. We disagree.
{¶30} This court has repeatedly rejected similar arguments. In State v. Crawley,
8th Dist. Cuyahoga No. 102781, 2015-Ohio-5150, for example, this court stated:
In the case at hand, appellant contends that the trial court failed to make the
requisite findings, under R.C. 2929.14(C)(4), that consecutive sentences are
not disproportionate to the seriousness of his conduct and to the danger he
poses to the public. * * *
Appellant disputes the trial court’s lack of specificity, arguing that the court
merely stated that the sentences were “not disproportionate,” without
specifying the basis on which that determination was made. Therefore,
appellant argues, the trial court failed to make sufficient findings required
by R.C. 2929.14(C)(4).
This court has repeatedly held that although the trial court must make the
findings required by R.C. 2929.14(C)(4), the court has no obligation to state
the reasons to support its findings. Having made sufficient findings for the
imposition of consecutive sentences, the trial court fulfilled the R.C.
2929.14(C)(4) requirements. Thus, the trial court’s failure to identify the
factors — or “the reasons” — that were considered in its proportionality
analysis does not render the consecutive sentences contrary to law.
Crawley at ¶ 10, 12-13. Similarly, in State v. Cooperwood, 8th Dist. Cuyahoga Nos.
99309-99311, 2013-Ohio-3432, this court stated:
Cooperwood complains that the trial court, instead of stating that
consecutive sentences “would not be disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public,”
stated only that consecutive sentences “would not be disproportionate.”
Viewing the court’s statement in its context, we are satisfied that the trial
court made a distinct “proportionality” finding in compliance with the
statute.
Cooperwood at ¶ 40.
{¶31} Likewise, in State v. Amey, 8th Dist. Cuyahoga Nos. 103000 and 103001,
2016-Ohio-1121, this court held that, when the trial court’s remarks were “[v]iew[ed] * *
* in their entirety,” the trial court’s statement that consecutive sentences “would not be
disproportionate” was sufficient to constitute a statutory finding that consecutive
sentences “would not be disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public” in compliance with R.C. 2929.14(C)(4) as
follows:
Amey complains that the court stated only that consecutive sentences
“would not be disproportionate,” and therefore did not make the statutory
finding that consecutive sentences “would not be disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses
to the public.” * * *
[I]n this matter, the trial court’s statements on the record clearly indicate
that it considered proportionality with regard to the seriousness of Amey’s
conduct and the danger presented. The court remarked that Amey was on
probation for a domestic violence conviction * * *. The court noted that he
had been referred to domestic violence classes but did not attend them. The
court also outlined Amey’s extensive record that included crimes of
violence and offenses committed while Amey was on community control
sanctions. The court remarked that he had not “responded favorably to
sanctions previously imposed.” Viewing the court’s remarks in their
entirety, we are satisfied that the trial court made a distinct “proportionality”
finding in compliance with the statute.
Amey at ¶ 15-16.
{¶32} In State v. Kirkman, 8th Dist. Cuyahoga No. 103683, 2016-Ohio-5326, this
court held that a finding that consecutive service of a defendant’s sentences would not be
disproportionate to the seriousness of his conduct could be discerned from the court’s
statement that “I don’t believe it’s disproportionate.” Kirkman at ¶ 5. The court
indicated that “[w]hile we prefer that the sentencing judge make separate and distinct
findings under R.C. 2929.14(C)(4),” in Bonnell, the Ohio Supreme Court took “a more
‘relaxed’ approach to those findings, finding that the requisite findings could be made if
the reviewing court could ‘discern’ them from statements made by the sentencing judge.”
Id. at ¶ 4; see also State v. McCoy, 8th Dist. Cuyahoga No. 103671, 2016-Ohio-5240, ¶
13-14 (trial court made findings required under R.C. 2929.14(C)(4) that consecutive
sentences were not disproportionate to the seriousness of defendant’s conduct and the
danger he posed to the public where trial judge said “based upon the defendant’s actions,
three separate cases where firearms were utilized or brandished, individuals being robbed
* * * at shopping centers, I don’t believe that any punishment would be disproportionate,
and I believe it’s necessary to protect and punish”); State v. Chaney, 2d Dist.
Montgomery No. 2015-CA-116, 2016-Ohio-5437, ¶ 11 (“‘[T]he trial court’s failure to
employ the phrase “not disproportionate to the * * * danger [appellant] poses to the
public” does not mean that the trial court failed to engage in the appropriate analysis and
failed to make the required finding.’”), quoting State v. Hargrove, 10th Dist. Franklin No.
15AP-102, 2015-Ohio-3125, ¶ 21.
{¶33} State v. Elmore, 7th Dist. Jefferson No. 14 JE 0021, 2016-Ohio-890, upon
which Morris relies, is distinguishable. In that case, the trial court never used the term
consecutive sentence and never used the terms proportionate or disproportionate or
otherwise applied the concept when imposing consecutive sentences. Id. at ¶ 54, 58-60.
As the Seventh District noted: “Inherent in the proportionality finding is that a trial court
engage in a weighing process, comparing or balancing these two factors, which it stands
in the best position to do.” Id. at ¶ 58. In this case, the record demonstrates that the trial
court carefully weighed the seriousness of Morris’ conduct and the danger he poses to
the public against the consecutive service of his sentences.
{¶34} On the record before us, we find that the trial court satisfied its statutory
obligations to make the requisite findings for imposing consecutive sentences under R.C.
2929.14(C)(4) and to incorporate those findings into the sentencing entry. The trial
court’s statements on the record indicate that it considered proportionality both with
regard to the seriousness of Morris’ conduct and the danger he poses to the public. The
trial court expressly found that consecutive service of Morris’s sentences was “necessary
* * * to protect the public” and that “consecutive sentences in this matter are necessary to
protect and punish, are not disproportionate.” The trial court further remarked that
Morris “was found guilty of violent sentences, rape and kidnapping,” that he “has utterly
failed the responsibilities to the people of the State of Ohio to report his whereabouts and
make his whereabouts known” and that he’s “a danger to the public doing that.” The
trial court also noted that the offenses were committed while Morris was on postrelease
control and while he was on “probation” for an “identical offense” for failure to verify his
address. Viewing the trial court’s remarks in their entirety, we can discern from the trial
court’s statement — “I believe consecutive sentences in this matter are necessary to
protect and punish, are not disproportionate” — findings that consecutive sentences are
both not disproportionate to the seriousness of Morris’ conduct and not disproportionate
to the danger Morris poses to the public.
{¶35} Morris next argues that the record does not support the trial court’s
proportionality findings. He contends that because the reporting violations giving rise to
his convictions did not involve “any harm to persons or property” and “are not new
substantive crimes at all” but rather, are only “technical in nature,” the record does not
support the trial court’s findings that consecutive sentences are disproportionate to the
seriousness of his conduct and to the danger he poses to the public. Once again, we
disagree.
{¶36} Where, as here, the trial court has made the findings required to impose
consecutive sentences, we cannot vacate those sentences unless we “clearly and
convincingly find[]” that “the record does not support the sentencing court’s findings.”
R.C. 2953.08(G)(2); see also Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231 at ¶ 22 (“R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate
sentences if they find by clear and convincing evidence that the record does not support
any relevant findings under [R.C. 2929.14(C)(4)]”), citing State v. Belew, 140 Ohio St.3d
221, 2014-Ohio-2964, 17 N.E.3d 515, ¶ 12 (Lanzinger, J., dissenting from the decision to
dismiss the appeal as having been improvidently accepted).
{¶37} As this court explained in State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453(8th Dist.), “[t]his is an extremely deferential standard of review”:
It is also important to understand that the clear and convincing standard
used by R.C. 2953.08(G)(2) is written in the negative. It does not say that
the trial judge must have clear and convincing evidence to support its
findings. Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court’s findings. In
other words, the restriction is on the appellate court, not the trial judge.
Id. at ¶ 21.
{¶38} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus.
{¶39} We do not “clearly and convincingly” find that the record does not support
the trial court’s findings. The record reflects that Morris has a fairly extensive criminal
history dating back to 1993 that includes several OVIs, a domestic violence conviction,
probation violations, rape, kidnapping and burglary convictions and multiple similar
reporting violations, as to which prior, lesser sanctions had not discouraged Morris from
engaging in the same conduct. The trial court concluded that consecutive prison
sentences were the only way to impress on Morris the importance of complying with his
reporting obligations and to keep the public safe from his criminal conduct.
{¶40} Accordingly, there is no basis for vacating the trial court’s imposition of
consecutive sentences on the failure to verify address conviction in Case No.
CR-14-588516 and the escape conviction in Case No. CR-15-597117 under R.C.
2929.14(C)(4) or R.C. 2953.08(G)(2). Morris’ second assignment of error is overruled
in part and moot in part.
{¶41} Judgment affirmed in part; reversed in part; vacated in part; remanded.
It is ordered that appellant recover from appellee the 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.
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
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR