State v. Harris ( 2022 )

[Cite as State v. Harris, 2022-Ohio-1396.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110565
v. :
RAFAEL HARRIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 28, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-653363-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney and Ronni Ducoff, Assisting Prosecuting
Attorney, for appellee.
Mary Elaine Hall, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Rafael Harris (“Harris”) appeals his sentence
following guilty pleas. For the reasons set forth below, we affirm.
Procedural and Factual History1
On September 28, 2020, a grand jury returned a ten-count indictment
against Harris comprised of two counts of rape, one count of attempted rape, four
counts of gross sexual imposition, one count of illegal use of a minor in nudity-
oriented material or performance, and two counts of disseminating matter harmful
to juveniles. The indictment stemmed from allegations of sexual misconduct Harris
committed against the minor daughter of his long-term live-in girlfriend.
On April 13, 2021, following a negotiated agreement with the state,
Harris appeared in court to enter guilty pleas. Pursuant to the agreement, Harris
would plead guilty to two counts of sexual battery because of the state amending the
rape charges in Counts 1 and 2 respectively. Harris would also plead guilty to one
count each of gross sexual imposition and of disseminating matter harmful to
juveniles as charged in Counts 4 and 10 respectively. In exchange, the state would
dismiss the remaining charges.
Prior to accepting Harris’ pleas, the trial court advised Harris of the
constitutional rights that he would be waiving by pleading guilty. The trial court
reviewed the nature of the charges, the maximum penalties involved, and advised
Harris that he would be classified as a Tier III sexual offender. Harris then entered
guilty pleas as outlined above, the trial court ordered a presentence-investigation
report, and scheduled the sentencing hearing for May 18, 2021.
1 The appeal stems from a negotiated guilty plea, and Harris’ sole challenge is to an
alleged ambiguity in the sentence imposed. Therefore, we will not render a detailed
recitation of the underlying facts.
At the sentencing hearing, the trial court began by indicating that it
had reviewed the presentence-investigation report, as well as a report prepared by a
social worker, regarding Harris’ mental health. The trial court then heard from the
state, defense counsel, Harris, the victim’s mother, and Katie Kruger, an advocate
from the Cleveland Rape Crisis Center, who read a letter written by the victim.
Thereafter, the trial court proceeded to sentence Harris to five years
on each count of sexual battery, 18 months on the gross sexual imposition count,
and 12 months on the disseminating matter harmful to juvenile count. The trial
court ordered Harris to serve the two five-year sentences for sexual battery
consecutively to each other for a total prison sentence of 10 years.
Harris now appeals and assigns the following sole error for review:
Assignment of Error
Whether the trial court below committed plain error when it failed to
make specific findings to include the sentences on Count 4 / 18 months
and Count 10 / 12 months consecutive to or concurrent with the 10-
year consecutive sentence in Counts 1 and 2.
Law and Analysis
In the sole assignment of error, Harris argues that the trial committed
plain error by failing to make specific findings whether the sentences in Counts 4
and 10 were to be served consecutive to, or concurrent with, the total 10-year
consecutive sentence for the two counts of sexual battery.
Initially, we note, R.C. 2929.41, regarding multiple sentences,
provides in pertinent part:
(A) Except as provided in division (B) of this section, division (C) of
section 2929.14, or division (D) or (E) of section 2971.03 of the Revised
Code, a prison term, jail term, or sentence of imprisonment shall be
served concurrently with any other prison term, jail term, or sentence
of imprisonment imposed by a court of this state, another state, or the
United States * * *.
Thus, under R.C. 2929.41(A), the presumption in Ohio is that
sentences are to run concurrently, unless where the trial court makes the R.C.
2929.14(C)(4) findings for consecutive sentences. State v. Evans, 8th Dist.
Cuyahoga No. 100151, 2014-Ohio-3584, ¶ 25, citing State v. Wells, 8th Dist.
Cuyahoga No. 98428, 2013-Ohio-1179, ¶ 11; R.C. 2929.41(A).
At the heart of Harris’ challenge to the imposed sentence is the notion
that the trial court should have made specific findings relative to Counts 4 and 10.
Harris’ challenge suggests that the “specific findings” would remove any ambiguities
in the sentence that the trial court pronounced. As framed, Harris asserts he is
unable to discern whether he is to serve 10 years or 12 and a half years.
In this matter, in imposing sentence, the trial court stated:
The [c]ourt having considered all the required factors under [R.C.]
2929.11, [.]12 and [.]13, at this time sentences the defendant to Count
1, five years in Lorain Correctional Institution. Count 2, five years in
Lorain Correctional Institution. Count 4, I sentence the defendant to
18 months. Count 10, twelve months. Counts 1 and 2 will run
consecutively to each other for a total of ten years in Lorain
Correctional Institution.
At the heart of Harris’ challenge to the imposed sentence is the notion
that the trial court should have made specific findings relative to Counts 4 and 10.
Harris’ challenge suggests that the “specific findings” would remove any ambiguities
in the sentence that the trial court pronounced.
However, pursuant to R.C. 2929.41(A), defendant’s sentences are
presumed to run concurrently as a matter of law if the trial court’s sentencing entry
is silent as to whether the sentences are to be served consecutively or concurrently.
State v. Wright, 8th Dist. Cuyahoga No. 107213, 2019-Ohio-1361, ¶ 13, citing State
v. Hall, 9th Dist. Summit No. 27942, 2016-Ohio-909, ¶ 6; State v. Marbury, 10th
Dist. Franklin No. 03AP-233, 2004-Ohio-3373, ¶ 68.
Even if we were to conclude that the absence of a specific statement
created an ambiguity, as to whether the trial court imposed concurrent or
consecutive sentences on those two counts, we further note that any sentencing
ambiguities are resolved in favor of the defendant. Wright at ¶ 15, citing State v.
Quinones, 8th Dist. Cuyahoga No. 83720, 2004-Ohio-4485 at ¶ 16; State v. Carr,
167 Ohio App.3d 223, 2006-Ohio-3073, 854 N.E.2d 571, ¶ 4 (3d Dist.) (“If a
sentencing is ambiguous as to whether a sentence should be served concurrently or
consecutively, the ambiguity must be resolved in favor of the defendant and the
sentence must be served concurrently.”); Hamilton v. Adkins, 10 Ohio App.3d 217,
461 N.E.2d 319 (12th Dist.1983), syllabus (where there is ambiguity as to whether
the sentences are to be served concurrently or consecutively, the defendant is
entitled to have the language construed in his favor so that the sentences may be
served concurrently).
Moreover, contrary to Harris’ present contention, the record reveals
that the trial court indicated at the time Harris appeared to enter the guilty pleas
that he would not be given a maximum sentence, that is, not 12 and a half years.
Specifically, the trial court stated, “I could tell you that I’m not considering the
minimum, nor would I consider giving you a maximum consecutive sentence
because you are pleading guilty and accepting responsibility.” In elaborating, the
trial court stated, “So, twelve and a half years is the maximum consecutive sentence
that I could give to you and because you are pleading guilty and accepting
responsibility, I’m not going to give you a maximum sentence, nor am I considering
a minimum sentence.”
In addition to the trial court indicating, prior to accepting the pleas,
that it would not be giving a maximum sentence of 12 and a half years, it was again
underscored at the beginning of the sentencing hearing. Relevantly, the assistant
prosecuting attorney stated, “And it was understood at the time of the plea that he
faces a potential sentence of twelve years, six months * * *. It was understood that
he would not receive the maximum sentence of twelve and a half years. He has
spared the victim from having to come in and testify.”
Here, given that there is a presumption that multiple sentences are to
be served concurrently; given that the trial court advised Harris before accepting the
pleas that he would not be given a maximum sentence of 12 and a half years; given
that this refrain was underscored at the beginning of the sentencing hearing; and
given that the trial court stated, “[F]or a total of ten years in the Lorain Correctional
Institution,” belies Harris’ perceived ambiguity. Based on the foregoing, we find any
further pronouncement by the trial court would have been superfluous.
Accordingly, we overrule the sole assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant 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 Common Pleas Court 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.
EMANUELLA D. GROVES, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR