State v. Wilkins ( 2021 )

[Cite as State v. Wilkins, 2021-Ohio-311.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109368
v. :
DAVID A. WILKINS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED; REMANDED
RELEASED AND JOURNALIZED: February 4, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-628022-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey Schnatter, Assistant Prosecuting
Attorney, for appellee.
Thomas Rein, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant David Wilkins appeals the trial court’s
imposition of consecutive sentences. Wilkins contends that the trial court failed to
comply with R.C. 2929.14(C)(4) because the language used by the trial court when
incorporating its consecutive sentence findings in its sentencing journal entry
“contain[ed] more of a blanket statement than what was actually stated by the trial
court on the record” when it imposed consecutive sentences at his resentencing
hearing.
For the reasons that follow, we affirm Wilkins’ sentences but remand
for the trial court to issue a nunc pro tunc order incorporating all of the consecutive
sentence findings it made at the resentencing hearing into its sentencing journal
entry.
Procedural History and Factual Background
On November 6, 2018, Wilkins pled guilty to the following charges:
• Amended Count 1, reckless homicide in violation of R.C. 2903.041, a
third-degree felony;
• Count 3, drug trafficking in cocaine (August 11-12, 2017) in violation
of R.C. 2925.03(A)(1), a fifth-degree felony;
• Count 6, drug trafficking in cocaine (January 3, 2018) in violation of
R.C. 2925.03(A)(1), a fifth-degree felony;
• Count 10, drug trafficking in cocaine (January 10, 2018) in violation
of R.C. 2925.03(A)(1), a fifth-degree felony;
• Amended Count 13, drug trafficking in cocaine (January 16, 2018) in
violation of R.C. 2925.03(A)(2), a second-degree felony;
• Amended Count 16, drug possession of heroin (January 16, 2018) in
violation of R.C. 2925.11(A), a fifth-degree felony, with forfeiture
specifications and
• Count 18, having weapons while under disability in violation of R.C.
2923.13(A)(3), a third-degree felony, with forfeiture specifications.
The trial court sentenced Wilkins to 36 months in prison on Counts 1
and 18, 12 months on each of Counts 3, 6, 10 and 16 and 8 years on Count 13. The
trial court ordered that the sentences on Counts 1, 3, 6, 10 and 16 run concurrently
with each other and with the sentence on Count 13. The trial court further ordered
that the 8-year sentence on Count 13 be served consecutively to the 36-month
sentence on Count 18, resulting in an aggregate prison sentence of 11 years. The trial
court also imposed three years’ mandatory postrelease control.
Wilkins appealed his convictions. On appeal, this court vacated the
consecutive sentences imposed by the trial court after determining that the trial
court had failed to make the proportionality finding required under R.C.
2929.14(C)(4), i.e., that consecutive sentences “are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
public.” This court otherwise affirmed Wilkins’ convictions. State v. Wilkins, 8th
Dist. Cuyahoga No. 107982, 2019-Ohio-4061, ¶ 32-34, 39. The case was remanded
to the trial court for the limited purpose of considering (1) whether Wilkins’ 8-year
sentence on Count 13 should be served consecutively with his 36-month sentence on
Count 18 under R.C. 2929.14(C)(4) and (2) if so, to make all of the required findings
on the record and incorporate those findings into its sentencing journal entry. Id.
at ¶ 39.
On December 16, 2019, the trial court held a resentencing hearing.
The state, defense counsel and Wilkins addressed the trial court at the hearing. After
considering the statements made at the resentencing hearing and reviewing the PSI,
Wilkins’ previously filed motion to mitigate and this court’s decision on appeal, the
trial court, once again, imposed consecutive sentences on Counts 8 and 13.
The trial court made the followings findings in support of the
imposition of consecutive sentences at the resentencing hearing:
In going through the whole thing once again, as I would at any
sentencing, there are a number of things that do concern me, which is
to say that while you don’t have an extremely extensive record, the
record that you do have includes multiple drug convictions, perhaps
mostly misdemeanor, but still some felony drug convictions.
You did successfully complete an EIP program, which resulted
in a felony case being dismissed. You had Judge Clancy on a drug case.
She found you to be a violator multiple times, but continued you on
with her. And then I did note in this case that the time frame[s] that
are included in the indictment span several various dates, different
dates.
And so I do find that consecutive sentences are necessary to
protect the public from future crimes or to punish you and that the
consecutive sentences are not disproportionate to the seriousness of
your conduct and to the danger that you pose to the public. As I said,
this is a course of conduct here.
These multiple offenses were committed as part of one or more
of a course of conduct and obviously the harm caused here by the death
of the victim in this matter was so great or unusual that no single prison
term for any of these sentences [sic] committed as part of the course of
conduct would adequately reflect the seriousness of your conduct.
Additionally, as I’ve already indicated, your criminal history
demonstrates that consecutive sentences are necessary to protect the
public from future crimes by you.
In its December 17, 2019 sentencing journal entry, the trial court set
forth its findings in support of the imposition of consecutive sentences as follows:
The court imposes prison terms consecutively finding that consecutive
service of the prison term 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, at least two of the
multiple offenses were committed in this case as part of one or more
courses of conduct, and the harm caused by said multiple offenses 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 defendant’s conduct.
Wilkins appealed, raising the following single assignment of error for
review:
The trial court erred by ordering appellant to serve a consecutive
sentence without making the appropriate findings required by R.C.
2929.14 and HB 86.
Law and Analysis
To impose consecutive sentences, a 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 the requisite findings in support of the
imposition of consecutive sentences at the sentencing hearing and 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.
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). When
imposing consecutive sentences, the trial court is not required to give a “talismanic
incantation of the words of the statute.” Bonnell at ¶ 37. “[A]s long as the reviewing
court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. at ¶ 29. When considering whether the trial court
has made the requisite findings, an appellate court must view the trial court’s
statements on the record “in their entirety.” See, e.g., State v. Blevins, 2017-Ohio-
4444, 93 N.E.3d 246, ¶ 21, 23, 25 (8th Dist.).
Wilkins does not dispute that the trial court made all of the requite
findings to support the imposition of consecutive sentences at the resentencing
hearing and does not dispute that the record supports the consecutive sentence
findings made by the trial court at the resentencing hearing. He also acknowledges
that the trial court set forth the consecutive sentence findings required by R.C.
2929.14(C)(4) in its December 17, 2019 sentencing journal entry. However, he
nevertheless contends that the trial court’s findings as set forth in the sentencing
journal entry “did not meet the requirements * * * that the Ohio Supreme Court set
forth in State v. Bonnell” because “the [j]ournal [e]ntry contains more of a blanket
statement than what was actually stated by the trial court on the record” at the
resentencing hearing.
Although the trial court must incorporate its consecutive sentence
findings into its sentencing journal entry, Bonnell at syllabus, there is nothing in
Bonnell that requires that the trial court, when doing so, use the identical language
it used when making those findings at the sentencing hearing.
At the resentencing hearing, the trial court found that (1) consecutive
sentences were necessary to protect the public from future crimes or to punish
Wilkins, R.C. 2929.14(C)(4), (2) consecutive sentences were not disproportionate to
the seriousness of his conduct and to the danger he poses to the public, id., and (3)
the multiple offenses were committed as part of one or more of courses of conduct
and the harm caused by the multiple offenses 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
would adequately reflect the seriousness of his conduct, R.C. 2929.14(C)(4)(b). The
trial court incorporated each of those findings, albeit using slightly different
language, into its December 17, 2019 sentencing journal entry.
Although it was not required to do so, given that only one finding
under R.C. 2929.14(C)(4)(a)-(c) is required for the imposition of consecutive
sentences, the trial court also found at the resentencing hearing that Wilkins’
“criminal history demonstrates that consecutive sentences are necessary to protect
the public from future crimes by you.” R.C. 2929.14(C)(4)(c). This finding, unlike
the trial court’s other consecutive sentence findings, was not set forth in the trial
court’s December 17, 2019 sentencing journal entry.
Even where a trial court omits a required consecutive sentencing
finding from its sentencing journal entry, it is well established that the 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.”
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30.
Accordingly, we overrule Wilkins’ assignment of error and affirm his
consecutive sentences but remand for the trial court to issue a nunc pro tunc order
incorporating all of the consecutive sentence findings it made at the resentencing
hearing into its December 17, 2019 sentencing journal entry, including its finding
under R.C. 2929.14(C)(4)(c).
Judgment affirmed; remanded.
It is ordered that appellant and appellee share 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, JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
MARY J. BOYLE, A.J., CONCURS IN JUDGMENT ONLY