State v. Alexander

[Cite as State v. Alexander, 2013-Ohio-1987.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98762
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VAUGHN ALEXANDER, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-555041 and CR-561726
BEFORE: Jones, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 16, 2013
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Andrew J. Santoli
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant, Vaughn Alexander, appeals his consecutive sentence.
We affirm.
I. Procedural History
{¶2} In December 2011, Alexander entered into a plea agreement with the state of
Ohio and pleaded guilty to two counts of drug trafficking and agreed to forfeit four cell
phones in Case No. CR-555041. The trial court sentenced Alexander to two years of
community control sanctions with conditions. In addition, the trial court issued a
suspended sentence of 12 months in prison on each drug trafficking count. At the time
of his plea and sentence, Alexander was on probation to the court in Case No.
CR-547970.
{¶3} On July 17, 2012, Alexander pleaded guilty to one count of drug trafficking
and one count of attempted retaliation and agreed to forfeit a bicycle and a cell phone in
Case No. CR-561726. The trial court proceeded immediately to sentencing and revoked
Alexander’s community control sanctions in CR-555041. The trial court sentenced
Alexander as follows: (1) in Case No. CR-561726, the court sentenced Alexander to 17
months in prison on each of the two counts, to be served concurrently; (2) in Case No.
CR-555041, the court sentenced him to 11 months in prison on each of the two counts, to
be served concurrently; and (3) in Case No. CR-547970, the court decided to terminate
probation. The trial court ordered the sentences in Case Nos. CR-555041 and
CR-561726 to be served consecutively, for a total of 28 months in prison.
II. Law and Analysis
{¶4} Alexander appeals, raising one assignment of error for our review, in which
he argues that the trial court erred by imposing consecutive sentences without making
findings mandated by R.C. 2929.14.
{¶5} An appellate court must conduct a meaningful review of the trial court’s
sentencing decision. State v. Johnson, 8th Dist. No. 97579, 2012-Ohio-2508, ¶ 6, citing
State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892. R.C. 2953.08(G)(2) provides that
an appellate court must “review the record, including the findings underlying the sentence
or modification given by the sentencing court.” If an appellate court clearly and
convincingly finds either that (1) “the record does not support the sentencing court’s
findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is otherwise contrary to law,”
then “the appellate court may increase, reduce, or otherwise modify a sentence * * * or
may vacate the sentence and remand the matter to the sentencing court for resentencing.”
Johnson at id.{¶6} R.C. 2929.14(C)(4) provides that if multiple prison terms are imposed on an
offender for convictions of multiple offenses, the court may require the offender to serve
the prison terms consecutively if (1) the court finds that the consecutive sentence is
necessary to protect the public from future crime or to punish the offender; (2) that the
consecutive sentence is 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)(a)-(c).1
{¶7} Thus, a sentencing court must analyze whether consecutive sentences are
necessary to protect the public or punish the offender, are not disproportionate, and make
one additional finding listed in R.C. 2929.14(C)(4)(a)-(c).
{¶8} “A trial court satisfies this statutory requirement when the record reflects that
the court has engaged in the required analysis and has selected the appropriate statutory
criteria.” State v. Goins, 8th Dist. No. 98256, 2013-Ohio-263, ¶ 10, citing State v.
Edmonson, 86 Ohio St.3d 324, 326, 1999-Ohio-10, 715 N.E.2d 131.
{¶9} In making these findings, a trial court is not required to use “talismanic words
R.C. 2929.14(C) refers to “convictions of multiple offenses,” but does not distinguish
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between multiple counts in a single case and multiple counts in separate cases. Consequently, the
statute applies even though Alexander was sentenced in two separate cases.
to comply with the guidelines and factors for sentencing.” Goins at id., citing State v.
Brewer, 1st Dist. No. C-000148, 2000 Ohio App. LEXIS 5455, *10 (Nov. 24, 2000).
But it must be clear from the record that the trial court actually made the findings required
by statute. Goins at id. A trial court satisfies this statutory requirement when the record
reflects that the court has engaged in the required analysis and has selected the
appropriate statutory criteria. Id.{¶10} In sentencing Alexander to consecutive sentences, the trial court stated that
“the purpose of felony sentencing in the State of Ohio is to protect the public and punish
the offender.” The court then outlined Alexander’s “extensive” criminal history, which
dated back to 1994, commenting that he had a “very, very poor adjustment to probation.”
The court noted that Alexander was on community control sanctions at the time he
committed the current crimes and showed no remorse. The court found that “due to the
defendant’s extensive history of narcotics trafficking, finding that these crimes were
committed while this defendant was under sanction to this court, and given that this
defendant does have an extensive criminal history of similar offenses * * * consecutive
sentences are appropriate.”
{¶11} Alexander claims that his sentence should be vacated because the trial court
failed to specifically find that the consecutive sentences were not disproportionate to the
seriousness of his conduct and the danger he poses to the public. But the trial court
made the appropriate findings as to proportionality when it stated that it was imposing
consecutive sentences based on Alexander’s extensive criminal history, noting that many
of his past crimes were similar in nature and involved drug trafficking. See State v.
Drobny, 8th Dist. No. 98404, 2013-Ohio-937; Goins, supra (finding the record offered
evidence that the trial court fully engaged in the R.C. 2929.14(C)(4) analysis, even though
specific findings were not stated on the record); State v. Jackson, 8th Dist. No. 98354,
2013-Ohio-372; but see State v. Battle, 8th Dist. No. 98294, 2013-Ohio-816 (trial court
failed to expressly address the R.C. 2929.14(C)(4) factors and there was insufficient
evidence in the record to show a reasoned consideration of the factors).
{¶12} Here, the trial court considered not only Alexander’s past crimes, but the
fact that it had twice previously sentenced Alexander to alternatives to prison, but
Alexander continued to traffic in narcotics.
{¶13} In light of the above, the trial court engaged in the appropriate analysis in
deciding to run the sentence in Case No. CR-561726 consecutive to the sentence it
imposed in Case No. CR-555041.2
{¶14} The sole assignment of error is overruled.
{¶15} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
Trial courts can ensure compliance with the sentencing statutes by utilizing a worksheet and
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memorializing their findings from that worksheet on both the record and in the court’s journal entry.
“Because a trial court speaks only through its journal, we have long approved the use of a
sentencing-findings worksheet to document that the trial court has made the required findings.” State
v. Jones, 8th Dist. No. 98371, 2013-Ohio-489, ¶ 47 (Gallagher, S., concurring), citing State v.
Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-3349.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. 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.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR