State v. Wells

[Cite as State v. Wells, 2014-Ohio-3032.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100365
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ELLORD WELLS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-568017
BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: July 10, 2014
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, Ellord Wells, brings the instant appeal challenging his 12-year
sentence that was imposed for the rape of a young woman. Appellant claims the
sentence is contrary to law and an abuse of discretion, and the trial court improperly
considered uncharged acts when imposing sentence. After a thorough review of the
record and law, we affirm in part, reverse in part, and remand for limited resentencing.
I. Factual and Procedural History
{¶2} Appellant was indicted on January 9, 2013, and charged with the April 15,
2012 rape and kidnapping of P.H. The indictment included one- and three-year firearm
and sexually violent predator specifications. Appellant was declared indigent and was
appointed counsel. The matter proceeded to a June 6, 2013 change of plea hearing where
appellant agreed to plead guilty to rape, a first-degree felony violation of R.C.
2907.02(A)(2). The other count and specifications were dismissed. The trial court
accepted appellant’s plea after a thorough colloquy, ordered a presentence investigation
report (“PSI”), and set sentencing for July 1, 2013.
{¶3} At the sentencing hearing, the trial court heard statements from the victim,
the state, appellant, and appellant’s attorney. The court then imposed an 11-year
sentence for rape. The court ordered that sentence to be served consecutively to a
one-year sentence imposed in a separate criminal case, Cuyahoga C.P. No.
2011-CR-554092. Appellant appeals from this sentence assigning two errors for review:
I. The sentence imposed by the trial court was contrary to law and an
abuse of discretion.
II. The trial court erred by considering other uncharged acts in sentencing
appellant where appellant objected to the allegations contained in the PSI as
being inaccurate and the court did not comply with R.C. 2951.03(B)(2) and
(5).
II. Law and Analysis
A. Standard of Review
{¶4} Appellant argues for this court to review the sentence for an abuse of
discretion, citing to the Ohio Supreme Court’s continued reliance on State v. Kalish, 120
Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Kalish was a decision meant to fill the
void left by the Ohio Supreme Court’s prior decision in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, which struck down certain sentencing provisions that
required judicial fact-finding. One of those provisions was R.C. 2953.08, which also set
forth the standard for appellate review of felony sentences.1 After the Supreme Court’s
decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), it was
clear that the trial court could make findings necessary to support consecutive sentences.
The court held,
[i]n light of historical practice and the States’ authority over administration
of their criminal justice systems, the Sixth Amendment does not inhibit
States from assigning to judges, rather than to juries, the finding of facts
necessary to the imposition of consecutive, rather than concurrent,
sentences for multiple offenses.
1 But see Justice Lanzinger’s dissent, where she argues that only certain
portions of R.C. 2953.08 were severed and that the standard of appellate review for
felony sentences remained viable. Kalish at ¶ 61.
{¶5} In the wake of that holding, the legislature enacted several sentencing
provisions on September 30, 2011, including R.C. 2953.08 and its appellate standard of
review governing felony sentencing. 2011 Am.Sub.H.B. No. 86. As a result, this court
looks to that directive from the legislature rather than the plurality opinion from the Ohio
Supreme Court. Therefore, this court reviews felony sentencing appeals based on the
dictates of R.C. 2953.08(G), which provides in part,
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing. The appellate
court’s standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶6} Stated more plainly, the statute “provides two grounds for an appellate court
to overturn the imposition of consecutive sentences: (1) the sentence is ‘otherwise
contrary to law’; or (2) the appellate court, upon its review, clearly and convincingly finds
that the record does not support the sentencing court’s findings under R.C.
2929.14(C)(4).” State v. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶
113.
B. Purposes and Principles of Felony Sentencing
{¶7} Appellant’s claims about consecutive sentences will be separately addressed
below. First, we shall address his concerns that the trial court failed to properly consider
certain factors outlined in R.C. 2929.11 and 2929.12, which set forth the purposes and
principles of felony sentencing.
{¶8} R.C. 2929.11 defines the overriding purposes and principles of sentencing
that the court must consider when imposing a felony sentence. The factors include the
need for incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both. R.C. 2929.11(A). R.C. 2929.11 also directs the court to impose the minimum
sanctions it determines “will accomplish those purposes without imposing an unnecessary
burden on state or local government resources.” R.C. 2929.12 directs the court to
consider a non-exhaustive list of mitigating and aggravating factors.
{¶9} Appellant claims, without any support, that the 12-year sentence is “beyond
what is necessary to accomplish the newly effective purposes of sentencing and,
therefore, places an unnecessary drain on state or government resources * * *.”
Appellant does not offer any evidence that the state cannot bear the cost of housing
appellant for 12 years as opposed to 10 or some lesser sentence. This is because “[i]t is
difficult for a defendant to establish a claim that a prison sentence imposes an
unnecessary burden on governmental resources where a prison sentence properly serves
the interests of public protection and punishment.” State v. Parker, 8th Dist. Cuyahoga
No. 100067, 2014-Ohio-1235, ¶ 5, citing State v. Bowshier, 2d Dist. Clark No. 08-CA-58,
2009-Ohio-3429, ¶ 14.
{¶10} Further, the court stated at sentencing that it
considered the relevant seriousness and recidivism factors, the overriding
principles and purposes of felony sentencing, namely to protect the public
from future crime by the defendant and others, and also to punish the
defendant using the minimum sanctions the court determines accomplishes
those purposes without imposing an undue burden on the state and local
government resources.
The record affirmatively demonstrates that the court considered this factor.
{¶11} Appellant also argues that his sentence is contrary to law because the court
did not consider proportionality or consistency, as required by R.C. 2929.11. The trial
court stated that it considered these things during the sentencing hearing, and no specific
findings are required. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶ 119.
{¶12} Additionally, these concepts must be distinguished. “[C]onsistency is
achieved by weighing the factors enumerated in R.C. 2929.11 and 2929.12 and applying
them to the facts of each particular case.” State v. Lababidi, 8th Dist. Cuyahoga No.
100242, 2014-Ohio-2267, ¶ 16, citing State v. Moon, 8th Dist. Cuyahoga No. 93673,
2010-Ohio-4483, ¶ 21. Here, the trial court did precisely that.
Although the term “consistency” in R.C. 2929.11(B) has been
confused with “proportionality,” R.C. 2929.11(B) does not mention the
word “proportionality.” This court has held that “consistency” in
sentencing is not the same as uniformity. State v. Bonness, 8th Dist.
Cuyahoga No. 96557, 2012-Ohio-474, ¶ 27. We have also held that “a
consistent sentence is not achieved from a case-by-case comparison, but the
trial court’s proper application of the statutory sentencing guidelines.”
State v. Sutton, 8th Dist. Cuyahoga No. 97132, 2012-Ohio-1054, ¶ 17.
Lababidi at ¶ 12.
{¶13} Proportionality analysis is derived from the Eighth Amendment’s
prohibition against sentences that are grossly disproportionate to the seriousness of the
crime. Id. at ¶ 14, quoting State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d 167(1999).
Thus, proportionality review “focus[es] on individual sentences
rather than on the cumulative impact of multiple sentences imposed
consecutively.” [State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824,] ¶ 20. Furthermore, a sentence that falls within the terms of a
valid sentencing statute is presumptively valid. State v. Williams, 8th Dist.
Cuyahoga No. 100042, 2014-Ohio-1618, ¶ 14.
Id. at ¶ 15.
{¶14} To argue that an 11-year sentence for raping a woman is disproportionate
and constitutes a cruel or unusual punishment strains the bounds of credibility. To
further argue that one additional year of incarceration imposed consecutive to that
sentence for an unrelated case goes beyond the bounds of permissible punishment is
similarly incredible.
{¶15} Also, appellant did not object or seek to demonstrate how his sentence was
disproportionate or inconsistent with other rapists. This is something this court has
determined is required in order to properly preserve this error for review. State v. Spock,
8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37.
{¶16} Appellant’s sentence is not contrary to law in these respects. The trial court
considered the factors outlined in R.C. 2929.11 and 2929.12.
C. Consecutive Sentences
{¶17} Appellant also complains that the trial court failed to articulate the necessary
findings in order to impose consecutive sentences. In order to impose consecutive
sentences, the trial court must make three findings:
that the consecutive service is [(1)] necessary to protect the public from
future crime or to punish the offender and that consecutive sentences are
[(2)] not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and [(3)] 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.
(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); State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527.
{¶18} When imposing sentence and addressing whether the individual sentences
would be served consecutively, the court stated:
The court further finds that since the crime — he has a long, lengthy record
and he’s failed to respond positively to prior sanctions. This crime was
committed while he was under sanctions, and the harm was so great and
unusual that a single term does not adequately reflect the seriousness of the
conduct, and his history also shows that consecutive terms need to be put
into place to protect the public. So in case number 554092-A, I’m going to
give him one year in prison. On the current case ending in 017 I’m going
to give him 11 years in prison. I wish it was more. The one year will run
consecutive to the 11 years.
Here, the court made findings under R.C. 2929.14(C) going to seriousness and protection
of the public. The court also determined that, pursuant to R.C. 2929.14(C)(4)(a), the
offense was committed while appellant was on community control. However, the court
did not address how the sentence would not be disproportionate to the harm caused.
While it is clear to this panel that the harm caused to the victim in this case is great and
would be demeaned by a lesser sentence, the trial court needs to find this. This court
cannot make determinations for the trial court that the statute requires to be made in order
to impose consecutive sentences.
{¶19} Therefore, this case must be remanded to the trial court so that it can make
the necessary findings to impose consecutive sentences or order those sentences to be
served concurrently. Nia at ¶ 28.
D. Sentencing Considerations
{¶20} Appellant claims the trial court failed to discount statements contained
within the PSI that he claimed were inaccurate and that these inaccuracies constituted
uncharged crimes for which he was punished.
{¶21} R.C. 2951.03 governs presentence investigation reports. R.C. 2951.03(B)(2)
gives defendants the right to review these reports and affords an opportunity to dispute
any inaccuracies. If such disputes arise, the court shall “(a) [m]ake a finding as to the
allegation; [or] (b) [m]ake a determination that no finding is necessary with respect to the
allegation, because the factual matter will not be taken into account in the sentencing of
the defendant.” R.C. 2951.03(B)(5).
{¶22} At the outset of the sentencing hearing, the trial court asked appellant if
there were any inaccuracies in the PSI. Appellant’s attorney responded that there were
not. Later, appellant’s attorney indicated that appellant did not state to the victim during
the rape that he was the “one raping everybody on Hough,” as the victim claimed in her
statement to police. Also, while making arguments related to the impending sentence for
appellant’s violation of community control sanctions in another case, the court indicated,
that, according to the victim’s statement to police contained in the PSI, appellant used the
victim’s name during the rape. Appellant’s attorney advised the court that appellant
denied ever using the victim’s name during the rape. The court replied, “[t]he court
believes the report, and the report indicates that he was stalking her, that he said he was a
rapist in that area.”
{¶23} Here, the trial court considered the alleged inaccuracies and made a finding
that the report was accurate. Just as in State v. Witt, 8th Dist. Cuyahoga No. 94800,
2011-Ohio-336, ¶ 18, “[t]he court considered the allegations of inaccuracy and found
none.” The court complied with the dictates of R.C. 2951.03 and made a factual
determination contrary to appellant’s position.
{¶24} Appellant finally argues that the trial court, when imposing sentence,
considered uncharged allegations that he had committed additional rapes and was stalking
the victim. Appellant points to the same statements recited above — that the court found
that appellant told the victim he was raping other women on Hough Avenue. This is not
an indication that the court punished appellant for unindicted crimes. The statements
contained in the police report just as likely could have been cited by the court, not for
their veracity, but to demonstrate a further attempt to terrorize and intimidate the victim
during a horrendous crime. The harm caused to the victim is a valid sentencing
consideration.
III. Conclusion
{¶25} Appellant’s sentence is contrary to law in only one sense. The trial court
failed to make the necessary findings to impose consecutive sentences. Therefore, the
case must be remanded for the court to make those findings or impose concurrent
sentences. Appellant’s sentence is not contrary to law in the other ways he argues herein.
{¶26} Cause affirmed in part, reversed in part, and remanded to the lower court for
resentencing consistent with this opinion.
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 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR