State v. Cole

[Cite as State v. Cole, 2018-Ohio-4646.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-18-26
v.
MICHAEL W. COLE, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 17 12 0409
Judgment Affirmed and Cause Remanded
Date of Decision: November 19, 2018
APPEARANCES:
Eric J. Allen for Appellant
Alice Robinson-Bond for Appellee
Case No. 8-18-06
PRESTON, J.
{¶1} Defendant-appellant, Michael W. Cole, Jr. (“Cole”), appeals the May
16, 2018 judgment entry of sentence of the Logan County Court of Common Pleas.
For the reasons that follow, we affirm the conviction and sentence of the trial court
and remand to the trial court so it can amend its sentencing entry via a nunc pro tunc
order to properly include the trial court’s consecutive-sentence findings.
{¶2} This case arises from a December 5, 2017 incident in which Cole
allegedly hit his live-in girlfriend, Kerri Emrick (“Emrick”), with a belt, grabbed
her by the neck, forced her to the ground, and hit the cell phone out of her hand
when she attempted to call the police. (Apr. 6, 2018 Tr. at 11-12). (See Doc. No.
29). When J.E., Emrick’s 13-year-old son, came to his mother’s aid, Cole allegedly
hit him as well. (Apr. 6, 2018 Tr. at 11-12). (See Doc. No. 29). After Cole was
arrested, he allegedly became aggressive and noncompliant with six separate law
enforcement officers culminating in officers deploying pepper spray on Cole and
placing him into a restraint chair. (Apr. 6, 2018 Tr. at 11-12). (See Doc. No. 29).
{¶3} On December 12, 2017, the Logan County Grand Jury indicted Cole on
six counts: Counts One and Two of domestic violence in violation of R.C.
2919.25(A), fourth-degree felonies; Count Three of disrupting public services in
violation of R.C. 2909.04(A)(1), a fourth-degree felony; Count Four of harassment
with a bodily substance in violation of R.C. 2921.38(A), a fifth-degree felony;
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Count Five of harassment with a bodily substance in violation of R.C. 2921.38(B),
a fifth-degree felony; and Count Six of assault in violation of R.C. 2903.13(A), a
fourth-degree felony. (Doc. No. 2). On December 15, 2017, Cole appeared for
arraignment and entered pleas of not guilty. (Doc. No. 8).
{¶4} On April 6, 2018, under a negotiated plea agreement, Cole withdrew
his pleas of not guilty and entered guilty pleas to Counts One and Four. (Doc. No.
39). In exchange, the State agreed to dismiss Counts Two, Three, Five, and Six.
(Id.). The trial court accepted Cole’s guilty pleas, found him guilty, and ordered a
presentence investigation. (Id.). The trial court also dismissed Counts Two, Three,
Five, and Six. (Id.). On April 17, 2018, the trial court filed its judgment entry of
conviction. (Id.).
{¶5} On May 15, 2018, the trial court sentenced Cole to 15 months in prison
on Count One and 9 months in prison on Count Four to be served consecutively for
an aggregate term of 24 months’ imprisonment. (Doc. No. 42). On May 16, 2018,
the trial court filed its judgment entry of sentence. (Id.).
{¶6} Cole filed his notice of appeal on May 31, 2018. (Doc. No. 50). He
raises one assignment of error.
Assignment of Error
The record in this matter does not support the imposition of
consecutive sentences pursuant to state law R.C. 2929.14.
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{¶7} In his assignment of error, Cole argues that the trial court erred in
sentencing him to 24 months in prison. Specifically, Cole argues that the record
does not support the trial court imposing consecutive sentences because he “has
made significant attempts at remaining sober and * * * seek[ing] help for himself.”
(Appellant’s Brief at 3-4). Additionally, Cole argues that he was “regularly seeing
a psychiatrist and being consoled [sic] at Consolidated Care” and that he and Emrick
were working on “reintegrating” their family unit. (Id. at 4).
{¶8} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
‘only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and
12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St. 3d 516,
2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that ‘“which will produce
in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.”’” Id., quoting Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio
St. 469 (1954), paragraph three of the syllabus.
{¶9} “Except as provided in * * * division (C) of section 2929.14, * * * 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
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this state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)
provides:
(4) * * * [T]he 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.
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(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)(2017) (current version at R.C. 2929.14(C)(2018)).
{¶10} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.
{¶11} The trial court must state the required findings at the sentencing
hearing when imposing consecutive sentences and incorporate those findings into
its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-
4140, ¶ 50, citing State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 29. A
trial court “has no obligation to state reasons to support its findings” and 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.” Bonnell at ¶ 37.
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{¶12} Cole contends that the record does not support a consecutive sentence
of 24 months because he “has made significant attempts at remaining sober,” “was
regularly seeing a psychiatrist and being consoled [sic] at Consolidated Care,” and
“shows genuine remorse for his actions and seeks to change.” (Appellant’s Brief at
3-4). However, Cole’s arguments are meritless as the trial court made the necessary
findings under R.C. 2929.14(C)(4) at the sentencing hearing and the record supports
those findings.
{¶13} The trial court made the three statutorily required findings at the
sentencing hearing. Specifically, at the sentencing hearing, the trial court said:
The Court finds that consecutive sentences are appropriate, so. [sic]
Count I and Count IV will be served consecutive to one another.
These are necessary to punish you and to otherwise protect the public
from your potential future crimes. They’re not disproportionate to the
seriousness of your conduct, and as I have indicated repeatedly, you
were on community control at the time that this offense was
committed and a single prison term would simply not adequately
reflect the seriousness of your conduct. I further find that your
criminal history demonstrates that consecutive sentences are in fact
necessary to protect the public.
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(May 15, 2018 Tr. at 20). Therefore, at the sentencing hearing, the trial court found
that consecutive sentences are necessary to protect the public or punish the offender
and that consecutive sentences would not be disproportionate to the offense
committed, and it made findings relative to R.C. 2929.14(C)(4)(a) and (c).
{¶14} The trial court incorporated its findings into its sentencing entry as
follows:
The Court finds that consecutive sentences are necessary to protect
the public from future crime and/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. 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.
(Doc. No 42). Thus, although the trial court made findings as to both R.C.
2929.14(C)(4)(a) and (c) at the sentencing hearing, the trial court only reproduced
its findings as to R.C. 2929.14(C)(4)(a) in its sentencing entry.
{¶15} With regard to R.C. 2929.14(C)(4)(a), the trial court found that Cole
committed the offenses while under supervision for domestic violence. At the
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sentencing hearing, Cole’s trial counsel stated “[Cole] had a probation violation out
of municipal court which stemmed from the same set of facts as this case, and in
that particular case he spent 90 days in jail.” (May 15, 2018 Tr. at 6). In addition,
the trial court reviewed the presentence investigation report (“PSI”) and confirmed
that Cole was under supervision for misdemeanor domestic violence when the
instant offenses were committed. (Id. at 12-13). (See PSI at 5). Before announcing
Cole’s sentence, the trial court again stated that the present offenses were committed
while Cole was under supervision for domestic violence. (May 15, 2018 Tr. at 15).
{¶16} However, the trial court’s finding that Cole was under community
control at the time he committed the subject offenses is not a valid basis to impose
consecutive sentences under R.C. 2929.14(C)(4)(a). The record supports that Cole
was under supervision for a misdemeanor, rather than for a felony, at the time he
committed the instant offenses. Because Cole was under supervision for a
misdemeanor only, he could not have been “under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code” as those sections of the
Revised Code apply to sanctions for felonies, not misdemeanors. See R.C.
2929.14(C)(4)(a), 2929.16, 2929.17, and 2929.18. See also State v. Steiner, 5th
Dist. Holmes No. 15CA17, 2016-Ohio-4648, ¶ 25, fn. 1. Furthermore, there is no
evidence in the record suggesting that Cole was awaiting trial or sentencing at the
time he committed the offenses or that he was under post-release control for a prior
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offense. See R.C. 2929.14(C)(4)(a). Therefore, the trial court could not rely on the
grounds set forth in R.C. 2929.14(C)(4)(a) to support Cole’s consecutive sentences.
See Steiner at ¶ 25, fn. 1 (concluding that R.C. 2929.14(C)(4)(a) was inapplicable
where Steiner was not awaiting trial or sentencing, was not on post-release control,
and was under sanction for a prior misdemeanor, rather than for a felony).
{¶17} Although the record does not support a finding under R.C.
2929.14(C)(4)(a), the trial court also made findings under R.C. 2929.14(C)(4)(c) at
the sentencing hearing supporting the imposition of consecutive sentences.
Specifically, during the sentencing hearing the trial court found that Cole’s
“criminal history demonstrates that consecutive sentences are in fact necessary to
protect the public.” (May 15, 2018 Tr. at 20). The record supports the trial court’s
conclusion under R.C. 2929.14(C)(4)(c).
{¶18} At the sentencing hearing, the trial court reviewed the PSI and Cole’s
criminal record going back to 1993 and noted that Cole consistently reoffended
when on post-release control, community control, or when subject to other criminal
sanctions. (May 15, 2018 Tr. at 11-13). (See PSI at 4-5). The trial court also found
that the instant case marks Cole’s sixth felony conviction, that he has prior
convictions for assault and domestic violence, and that Cole is “a danger to society.”
(May 15, 2018 Tr. at 16). (See PSI at 4-5). Finally, the trial court stated that it was
“particularly concerned about * * * the defendant’s prior criminal history” as
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detailed in the PSI. (May 15, 2018 Tr. at 17). (See PSI at 4-5). Thus, there is ample
evidence in the record to support the trial court’s finding under 2929.14(C)(4)(c)
that Cole’s criminal history demonstrates that consecutive sentences are necessary
to protect the public from future crime by Cole. See State v. Demeo, 11th Dist.
Ashtabula No. 2013-A-0067, 2014-Ohio-2012, ¶ 20 (noting that Demeo’s lengthy
criminal history and failure to observe community control sanctions supported
imposing consecutive sentences); State v. Chaney, 2d Dist. Clark No. 2015-CA-116,
2016-Ohio-5437, ¶ 16 (finding that the record supported consecutive sentences
when the defendant had a lengthy criminal history spanning three decades and did
not respond favorably to past sanctions); State v. Brown, 2d Dist. Champaign No.
2015-CA-21, 2016-Ohio-4573, ¶ 15, 17 (finding that the record supported
consecutive sentences when the defendant had not responded favorably to past
sanctions and had a juvenile history of prior drug offenses).
{¶19} Only one finding under R.C. 2929.14(C)(4)(a)-(c) is required to
impose consecutive sentences. State v. Jones, 8th Dist. Cuyahoga No. 104152,
2016-Ohio-8145, ¶ 8 (noting that the factors under R.C. 2929.14(C)(4)(a)-(c) “are
presented as three alternatives” and “[o]nly one need be supported by the record in
order to affirm”); State v. Robinson, 3d Dist. Hancock No. 5-16-13, 2017-Ohio-
2703, ¶ 14 (finding that the record supported the trial court’s imposition of
consecutive sentences where at least one of the R.C. 2929.14(C)(4)(a)-(c) factors
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was supported by the record); State v. Bell, 5th Dist. Muskingum No. CT2016-0049,
2017-Ohio-1531, ¶ 23-28 (finding that the record supported the trial court’s findings
under R.C. 2929.14(C)(4) and imposition of consecutive sentences where only one
of the R.C. 2929.14(C)(4)(a)-(c) factors was supported by the record); State v.
Brown, 7th Dist. Mahoning No. 16 MA 0161, 2018-Ohio-253, ¶ 53 (stating that
“[t]he trial court was only required to make one finding” under R.C.
2929.14(C)(4)(a)-(c)). Therefore, although the trial court’s findings under R.C.
2929.14(C)(4)(a) are not supported by the record, because its findings under R.C.
2929.14(C)(4)(c) are supported by the record and because these findings
independently support Cole’s consecutive sentences, the trial court complied with
R.C. 2929.14(C)(4).
{¶20} Additionally, the trial court found that the consecutive sentences are
necessary to protect the public or punish the offender and that consecutive sentences
would not be disproportionate to the offense committed. Thus, the trial court
satisfied the requirements of R.C. 2929.14(C)(4) at the sentencing hearing. See
Jones at ¶ 8; Robinson at ¶ 14; Brown, 2018-Ohio-253, at ¶ 53.
{¶21} Therefore, there is not clear and convincing evidence that Cole’s
sentences are unsupported by the record or that his sentences are otherwise contrary
to law. See Nienberg, 2017-Ohio-2920, at ¶ 23.
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{¶22} However, as noted above, the trial court did not incorporate its R.C.
2929.14(C)(4)(c) findings into its sentencing entry. Nevertheless, “[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.”
Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, at ¶ 30.
{¶23} Here, the trial court did make the appropriate statutory findings under
R.C. 2929.14(C)(4) at the sentencing hearing, but failed to include those findings in
its sentencing entry. Therefore, the trial court may satisfy Bonnell by amending its
sentencing entry via a nunc pro tunc order that includes the omitted finding under
R.C. 2929.14(C)(4)(c). See State v. Mayberry, 2d Dist. Montgomery No. 26025,
2014-Ohio-4706, ¶ 34.
{¶24} Cole’s assignment of error is overruled.
{¶25} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the conviction and sentence of the trial
court and remand so the trial court can amend its sentencing entry via a nunc pro
tunc order to include the trial court’s consecutive-sentence findings.
Judgment Affirmed and
Cause Remanded
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
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