State v. Wright

[Cite as State v. Wright, 2014-Ohio-3321.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100283
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES WRIGHT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART;
REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-563796
BEFORE: E.T. Gallagher, J., Rocco, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: July 31, 2014
ATTORNEYS FOR APPELLANT
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
FOR APPELLANT
Charles Wright, pro se
5327 Northfield Road, Suite 620
Bedford Heights, Ohio 44146
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Aleksandra Chojnacki
Brett Hammond
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Charles Wright (“Wright”), appeals his sentence. We
find some merit to the appeal, affirm in part, vacate a portion of the sentence that is
contrary to law, and remand the case to the trial court for clarification of its order
regarding the imposition of fines, court costs, and assigned counsel fees.
{¶2} Wright was charged with two counts of felonious assault in violation of R.C.
2903.11(A)(1) and 2903.11(A)(2). After several pretrials, he pleaded guilty to a single
fourth-degree felony count of aggravated assault, in violation of R.C. 2903.12(A)(1). As
part of the plea agreement, Wright agreed to pay the victim, Benjamin Tucker (“Tucker”),
restitution in the amount of $2,411, which represented the amount of Tucker’s medical
bills. The court ordered a presentence investigation report prior to sentencing.
{¶3} At the sentencing hearing, the state explained that the assault occurred at a
bar where Tucker was leasing space from Wright. During an argument, Wright hit
Tucker with a broken glass bottle as he was walking down the stairs. Tucker stated at
the hearing that Wright had threatened him several times before this incident, and that he
sustained lacerations in his arm that required approximately twenty stitches. The state
presented photographs of Tucker’s injuries, which are part of the record. Wright
admitted that he struck Tucker but claimed he was acting in self defense.
{¶4} The court sentenced Wright to eight months in prison and ordered Wright to
pay Tucker $2,411 in restitution. It also ordered that Wright have no-contact with
Tucker. The trial court judge initially indicated that fines and costs were waived because
Wright was indigent. However, in her next breath, she ordered him to pay $500 in costs,
$500 in fines, and $800 in assigned counsel fees.1 The sentencing entry imposes the
fines, costs, and assigned counsel fees. This appeal followed.
{¶5} In his sole assignment of error, Wright argues the trial court erroneously
imposed a sentence that was not supported by the record. He contends the court erred by
imposing a prison sentence, ordering him to pay fines and costs, and for imposing a
no-contact order.
{¶6} R.C. 2953.08(G)(2) states that when reviewing prison sentences, “[t]he
appellate court’s standard for review is not whether the sentencing court abused its
discretion.” Instead, the statute permits the appellate court to “‘increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing’” if we determine that “‘the record clearly and
convincingly * * * does not support the sentencing court’s findings under [various
provisions]; [or] [t]hat the sentence is otherwise contrary to law.’” State v. Bement, 8th
Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 13, quoting R.C. 2953.08(G)(2).
Prison Sentence
1 This discrepancy suggests perhaps the paragraphs were transposed and
that the court ordered fines, costs, and fees before finding Wright indigent. Or it is
possible a word was omitted that would have brought sense to these conflicting
statements.
{¶7} Wright argues the trial court erroneously imposed a prison term that was not
supported by the record. He contends the trial court failed to properly consider the
seriousness and recidivism factors listed in R.C. 2929.12 and failed to consider the
purposes and principles of sentencing articulated in R.C. 2929.11.
{¶8} R.C. 2929.11 and 2929.12 outline the general purposes and principles to be
achieved in felony sentencing. R.C. 2929.11(A) provides that 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.” R.C. 2929.11(B) requires that, in addition to achieving
these goals, a sentence must be “commensurate with and not demeaning to the
seriousness of the offender’s conduct and its impact upon the victim.”
{¶9} R.C. 2929.12 provides a non-exhaustive list of factors the court must consider
in determining the relative seriousness of the underlying crime and the likelihood that the
defendant will commit another offense in the future. State v. Townsend, 8th Dist.
Cuyahoga No. 99896, 2014-Ohio-924, ¶ 11, citing State v. Arnett, 88 Ohio St.3d 208,
213, 2000-Ohio-302, 724 N.E.2d 793. The factors include: (1) the physical,
psychological, and economic harm suffered by the victim, (2) the defendant’s prior
criminal record, (3) whether the defendant shows any remorse, and (4) any other relevant
factors. R.C. 2929.12(B) and (D).
{¶10} The trial court’s journal entry indicates that the court considered “all
required factors of the law” and concluded that prison is consistent with the purpose of
R.C. 2929.11. Although there is a mandatory duty to “consider” the statutory factors, the
trial court is not required to explain its analysis of those factors in a given case.
Townsend at ¶ 11-12. The trial court’s statement that it considered the required statutory
factors, without more, is sufficient to fulfill its obligations under the sentencing statutes.
State v. Kamleh, 8th Dist. Cuyahoga No. 97092, 2012-Ohio-2061, ¶ 61, citing State v.
Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 18.
{¶11} Nevertheless, the court acknowledged the seriousness of the injury sustained
by the victim, which required approximately 20 stitches to his arm. The court also
commented that Wright has a criminal record, and failed to cooperate with the probation
officer during the presentence investigation. The court stated:
You have a prior domestic violence marked down to a disorderly conduct.
You have a prior domestic violence, which is a prior crime of violence. And
now we have a crime of violence here where the victim received
approximately 20 stitches on his arm and elbow.
The defendant reported one hour late for his PSI interview, stated he had a
haircut, and that’s why he was late.
Brought in two cell phones, a Blackberry and an iPhone. They were not
turned off and rang throughout the interview. The first time it rang the
defendant asked if he could answer his phone. The officer told him he
could not. When it rang in the middle of the interview again, he went to
answer it, and the officer told him to hang up. This occurred after you
were already informed not to answer the phone during the interview.
You began to argue with the officer about common courtesy. * * * The
officer informed you it was rude and against probation department policy
for cell phones to be on during the interview. * * *
He used offensive language throughout the interview such as nigga and
fuck and referred to the victim as a negro and stated he wanted to refer to
the victim as quote, the N word.
Clearly, you have a problem following the rules of organized society. You
have a prior crime of violence. This is a crime of violence here.
Therefore, the Court does not believe you’re a good candidate for
community control.
Thus, the record not only shows the court considered the purposes and principles of
felony sentencing set forth in R.C. 2929.11 and the relevant seriousness and recidivism
factors listed in R.C. 2929.12, but the prison term is supported by the record.
{¶12} Wright argues the trial court improperly considered his prior domestic
violence charge because it was reduced to disorderly conduct pursuant to a plea
agreement. However, “‘[u]nindicted acts or not guilty verdicts can be considered in
sentencing without resulting in error when they are not the sole basis for the sentence.’”
State v. Corbett, 8th Dist. Cuyahoga No. 99649, 2013-Ohio-4478, quoting State v. Gray,
8th Dist. Cuyahoga No. 91806, 2009-Ohio-4200, ¶ 13. Furthermore, the trial court is
permitted to consider the original charge when sentencing. State v. Peal, 8th Dist.
Cuyahoga No. 97644, 2012-Ohio-6007, ¶ 18. When the defendant’s conviction results
from a plea bargain, the plea bargain “does not preclude the trial court’s consideration of
the underlying facts” in determining the appropriate sentence to impose. State v.
Frankos, 8th Dist. Cuyahoga No. 78072, 2001 Ohio App. LEXIS 3712 (Aug. 23, 2001).
{¶13} Therefore, the court was authorized to consider the fact that Wright had
previously been charged with domestic violence because the charge was not the sole basis
for his sentence.
Costs and Fines
{¶14} Wright also argues the trial court improperly ordered him to pay court costs,
fines, and assigned counsel fees after finding him indigent. He also argues the court’s
order is ambiguous with respect to fines, costs, and fees because the court ordered them
immediately after waiving them due to indigency. We agree this part of Wright’s
sentence is ambiguous and requires clarification.
{¶15} The court made conflicting statements at the sentencing hearing. First the
court stated that it waived costs because it found Wright indigent. Yet, in its next breath,
the court ordered him to pay fines, costs, and assigned counsel fees. The court’s journal
entry orders Wright to pay fines, costs, and fees, which suggests that likely was the
court’s intention. Nevertheless, due to the court’s inconsistent statements at the
sentencing hearing, we remand this case to the trial court to clarify its statements with a
nunc pro tunc entry.
No-Contact Order
{¶16} Wright argues the court’s order prohibiting him from contacting the victim
is invalid because it is a community control sanction, which is incompatible with his
prison sentence. The state concedes the no-contact order is invalid. The state asserts
the no-contact order is unenforceable because the constitutional concept of separation of
powers precludes the court from prescribing the terms of a defendant’s imprisonment.
Indeed, it is the judiciary’s role to sentence the defendant and the executive’s role to carry
out the punishment. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d
1254, ¶ 71.
{¶17} Wright’s sole assignment of error is sustained in part and overruled in part.
{¶18} Wright’s prison sentence is affirmed and the no-contact order is vacated.
The case is remanded to the trial court solely to allow the trial court to clarify in a journal
entry its July 23, 2013 sentencing entry.
It is ordered that appellee and appellant share 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
MARY EILEEN KILBANE, J., CONCUR