State v. Tolbert

[Cite as State v. Tolbert, 2023-Ohio-532.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111716
v. :
ROMAINE TOLBERT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 23, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-636261-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anna Faraglia, Assistant Prosecuting
Attorney, for appellee.
The Law Office of Jay M. Schlachet and Eric M. Levy, for
appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
Appellant Romaine Tolbert (“appellant”) appeals his sentence from the
Cuyahoga County Court of Common Pleas. After a thorough review of the applicable
law and facts, we affirm the judgment of the trial court.
I. Factual and Procedural History
This case is before us following a remand for resentencing after we
reversed appellant’s sentence in his direct appeal in State v. Tolbert, 8th Dist.
Cuyahoga No. 110249, 2022-Ohio-197 (“Tolbert I”). Specifically, this court
determined that the trial court did not comply with R.C. 2929.14(C)(4) in imposing
consecutive sentences when it “neither expressly found the factors, nor did the trial
court find these factors using different language.” Id. at ¶ 51.
Appellant was convicted in 2020 of involuntary manslaughter,
endangering children, gross abuse of a corpse, tampering with evidence, and
kidnapping arising from the death of appellant’s wife’s friend’s four-year-old son,
who resided with appellant and his wife, and the subsequent disposal of the child’s
body.1
The court sentenced appellant to 11 years on Count 7 (involuntary
manslaughter), 1 year on Count 9 (gross abuse of a corpse), and 3 years on Count 11
(kidnapping), to be served consecutively for an aggregate 15-year sentence. The
sentences of three years on Count 8 (endangering children) and three years on
Count 10 (tampering with evidence) were ordered to run concurrently to the
sentence imposed for Count 7.
Appellant appealed his conviction and sentence arguing that there was
insufficient evidence to support his convictions and that the trial court erred by
1
For a full recitation of the substantive facts, see State v. Tolbert, 8th Dist.
Cuyahoga No. 110249, 2022-Ohio-197, ¶ 1-28.
imposing consecutive sentences without making the requisite findings under R.C.
2929.14. This court overruled appellant’s sufficiency of the evidence argument and
sustained appellant’s argument regarding consecutive sentences. We determined
that the trial court did not properly find the factors to justify consecutive sentences
and remanded for resentencing.
On remand, the trial court held a new sentencing hearing. The court
noted that it was “limited to the issue of consecutive sentencing.” The court went on
to sentence appellant as follows:
So the Court has reviewed the Eighth District Court of Appeals opinion,
and in doing so the Court would issue the following sentence: First of
all, the Court is going to sentence Defendant Tolbert to 11 years on
Count Number Seven, three years on Count Number Eight, one year on
Count Number Nine, three years on Count Number 10, and three years
on Count Number 11. The Court orders that Counts Seven, Nine, and
11 are to be served consecutively, for a total sentence of 15 years. That
sentence will be the sentence of the Court.
The Court finds that consecutive sentences are necessary to protect the
public from future crime and to punish the offender. The Court finds
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 Court further finds pursuant to R.C. 2929.14(C)(4), the following:
I find that at least two of the multiple offenses were committed as part
of one or more courses of conduct and that 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. And two, that the offender’s history of criminal
conduct demonstrate that consecutive sentences are necessary to
protect the public from future crime by the offender.
The Court makes a finding that Tolbert breached his duty of care to the
deceased when he threw the deceased away like a piece of trash at a
construction site and that he concocted multiple lies that happened to
the victim, and fled the jurisdiction. Consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public. Consecutive sentences are not
disproportionate. The seriousness of Tolbert’s conduct is evident to the
fact that the victim is dead. Tolbert’s criminal history, as will be
discussed later, and his actions in this case show that he’s a danger to
the public. Considering the seriousness of his actions and the
likelihood that he will reoffend, consecutive sentences are not
disproportionate here.
At least two of the multiple offenses were committed as a part of one or
more courses of conduct, and that 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 reflect the seriousness of the
offender’s conduct.
The defendant was found guilty of multiple counts in this case. His
actions and neglect spanned a significant period of time and ultimately
resulted in the tragic death of the victim. There is no single prison term
that would adequately reflect the seriousness of what Tolbert did.
Further, the defendant’s criminal history demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender. Tolbert has a prior criminal history that includes
robbery, burglary, forgery, attempted obstruction of official business,
receiving stolen property, misrepresenting identity, and drug abuse.
Consecutive sentences are necessary to protect the public from future
crime and to punish Tolbert. Consecutive sentences are not
disproportionate to the seriousness of Tolbert’s conduct and to the
danger the offender poses to the public. This Court should and will
protect innocent children again by imposing consecutive sentences.
Anything less would demean the seriousness of the offender’s conduct
and its impact on the victim.
Appellant then filed the instant appeal, raising four assignments of
error for our review:
I. The trial court erred when it failed to conduct a complete
resentencing hearing and when it failed to issue credit for time served
and failed to order post release control and the imposition of court costs
which were imposed in the sentencing entry.
II. The trial court erred when it imposed consecutive sentences which
are not supported by the record and are contrary to law.
III. The trial court erred when it imposed consecutive sentences as an
impermissible sentencing package.
IV. The trial court erred by imposing sentences for felonies of the fifth
and third-degree stated in terms of years and not months which is
contrary to law under R.C. 2929.14(A) which only authorizes that
sentence be imposed in specific monthly intervals.
II. Law and Analysis
Appellant’s first assignment of error argues that the trial court erred by
not holding a full resentencing hearing and not stating that appellant had credit for
time served or ordering postrelease control or imposing court costs that were
imposed in the sentencing journal entry.
In State v. Nia, 2014-Ohio-2527, 15 N.E.3d 892 (8th Dist.), this court,
sitting en banc, held that when a trial court fails to make the requisite statutory
findings to support the imposition of consecutive sentences, “the trial court is
limited on remand to only the question raised regarding the required findings
pursuant to R.C. 2929.14(C)(4) to justify consecutive sentences.” Id. at ¶ 22.
Although this court did not explicitly instruct the trial court to limit its
resentencing to the issue of consecutive sentences, the proper remedy when a trial
court imposes consecutive sentences without making the requisite statutory
findings is to vacate the sentence and remand the matter to the trial court for the
limited purpose of considering whether consecutive sentences are appropriate
under R.C. 2929.14(C)(4) and to make the necessary findings. State v. Vargas, 8th
Dist. Cuyahoga No. 101796, 2015-Ohio-2856, ¶ 15, citing Nia at ¶ 28.
In the instant matter, the court properly complied with the remand by
considering whether consecutive sentences were appropriate and making the
requisite findings. The court was not required, nor would it be permitted, to address
any other aspect of appellant’s sentence. Thus, the remainder of appellant’s
sentence was unchanged, and the trial court did not err in declining to address any
aspect of appellant’s sentence beyond the issue of consecutive sentences.
Appellant’s first assignment of error is overruled.
Appellant’s second assignment of error argues that the trial court
erred in imposing consecutive sentences.
We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 1, 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may overturn the imposition of consecutive sentences where the
court “clearly and convincingly” finds 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.”
As the Supreme Court of Ohio has explained, when reviewing
consecutive sentences, “R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review
the record, including the findings underlying the sentence’ and to modify or vacate
the sentence ‘if it clearly and convincingly finds * * * [t]hat the record does not
support the sentencing court’s findings under’” R.C. 2929.14(C)(4). Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 28, quoting R.C.
2953.08(G)(2)(a).
Appellant argues that while the trial court “set forth the statutory buzz
words on the record and in its [j]ournal [e]ntry[,]” the record demonstrates that the
court never actually considered the factors and the findings made by the court do
not support the factors.
R.C. 2929.14(C)(4) provides that in order to impose consecutive
sentences, the trial court must find that consecutive sentences are (1) necessary to
protect the public from future crime or to punish the offender; (2) that such
sentences would not be disproportionate to the seriousness of the conduct and to
the danger the offender poses to the public; and (3) that one of the following applies:
(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 postrelease 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.
Compliance with R.C. 2929.14(C)(4) requires the trial court to make
the statutory findings at the sentencing hearing, which means that “‘the [trial] court
must note that it engaged in the analysis’ and that it ‘has considered the statutory
criteria and specifie[d] which of the given bases warrants its decision.’” Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 26, quoting State v. Edmonson,
86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). The reviewing court must be able to
discern that the record contains evidence to support the findings. State v. Davis,
8th Dist. Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial
court is not, however, required to state its reasons to support its findings, nor is it
required to precisely recite the statutory language, “provided that the necessary
findings can be found in the record and are incorporated in the sentencing entry.”
Bonnell at ¶ 37.
Upon review, we find that the trial court complied with R.C.
2929.14(C)(4) and engaged in the proper analysis for consecutive sentences. In
Tolbert I, we determined that the trial court had not “expressly refer[red] at any time
to whether the consecutive sentence was ‘not disproportionate’ to either the offense
of the [a]ppellant or to the likelihood of the [a]ppellant of reoffending.” Id. at ¶ 49.
On remand, the trial court addressed the seriousness of appellant’s conduct along
with his criminal history, expressly finding that consecutive sentences were not
disproportionate.
We find that the trial court specifically addressed each factor and
made the proper findings and that appellant has failed to demonstrate otherwise.
We further find that the record clearly and convincingly supports the court’s
findings. Accordingly, appellant’s second assignment of error is overruled.
In his third assignment of error, he argues that the trial court erred in
imposing consecutive sentences as an impermissible sentencing package. Appellant
contends that the trial court “grouped counts to form a bundled single sentence
against [a]ppellant aimed at meeting an impermissible purpose: protecting
innocent children.”
A sentencing judge has discretion to impose any individual sentence
that complies with applicable sentencing statutes. State v. Franklin, 8th Dist.
Cuyahoga No. 107482, 2019-Ohio-3760, ¶ 41. If a sentence falls within the statutory
range for that offense, there is a presumption of validity if the court considered the
applicable sentencing factors. Id., citing State v. Pavlina, 8th Dist. Cuyahoga No.
99207, 2013-Ohio-3620, ¶ 15, citing State v. Collier, 8th Dist. Cuyahoga No. 95572,
2011-Ohio-2791, ¶ 15. However,
[A] judge sentencing a defendant pursuant to Ohio law must consider
each offense individually and impose a separate sentence for each
offense. See R.C. 2929.11 through 2929.19. Only after the judge has
imposed a separate prison term for each offense may the judge then
consider in his discretion whether the offender should serve those
terms concurrently or consecutively. See State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the
syllabus, ¶ 100, 102, 105; R.C. 2929.12(A); State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the
syllabus. Under the Ohio sentencing statutes, the judge lacks the
authority to consider the offenses as a group and to impose only an
omnibus sentence for the group of offenses.
State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9.
In the present case, the trial court imposed valid individual sentences
that it felt were appropriate and determined to run some of those sentences
consecutive to each other to arrive at a 15-year aggregate sentence. Trial courts are
authorized to impose any individual sentence within the statutory range and are
granted latitude to order those sentences to be served consecutive to each other
where the situation warrants.
The trial court’s statements at the sentencing hearing indicate that the
court imposed individual sentences on each count and considered an overall
sentence that was appropriate when factoring in proper considerations under R.C.
2929.11, 2929.12, and 2929.14(C)(4). This does not implicate the sentencing-
package doctrine.
While appellant argues that the court did so with an improper
purpose, appellant mischaracterizes the trial court’s statements. The trial court
stated that it was imposing consecutive sentences, in part, to protect innocent
children. We find that the trial court’s statement regarding innocent children
related to its finding that consecutive sentences were necessary to protect the public.
The record does not reflect that the trial court sentenced appellant with an improper
purpose, and appellant’s third assignment of error is overruled.
Appellant’s fourth assignment of error argues that the sentences for
Counts 8, 9, and 10 must be vacated because they were stated in years rather than
months. We note that the sentences for these counts were the same in appellant’s
original sentence and any lack of conformity with the statute was not raised in
appellant’s direct appeal. Appellant’s argument is therefore barred by res judicata,
and his fourth assignment of error is overruled.
III. Conclusion
All of appellant’s assignments of error are overruled. The trial court
properly conducted resentencing within the narrow context of determining whether
to impose consecutive sentences and making findings related thereto. Further, the
trial court did not impose sentences under a sentencing package. Finally, any
arguments regarding the sentences related to Counts 8, 9, and 10 were not raised in
the first appeal and are therefore barred by res judicata.
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
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 DANIEL CELEBREZZE, III, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR