State v. Clark

[Cite as State v. Clark, 2018-Ohio-4600.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107041
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KOLBY CLARK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-622830-A
BEFORE: Jones, J., E.A. Gallagher, A.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: November 15, 2018
ATTORNEY FOR APPELLANT
Myron P. Watson
1144 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Eben McNair
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1, the trial court records and briefs of counsel.
{¶2} Defendant-appellant Kolby Clark (“Clark”) appeals his sentence for attempted drug
trafficking, attempted tampering with evidence, and two counts of drug possession. We affirm.
{¶3} In 2017, Clark was charged in a seven-count indictment with two counts of drug
trafficking, three counts of possession of drugs, one count of tampering with evidence, and one
count of possessing criminal tools. He entered into plea negotiations with the state of Ohio and
agreed to plead guilty to one count each of attempted drug trafficking and attempted tampering
with evidence, and two counts of drug possession. 1 The trial court referred Clark for a
1
The record shows that the police recovered two cell phones, a digital scale, $133 in U.S. currency, between 10 and
20 grams of cocaine, less than 200 grams of marijuana, and less than the bulk amount of fentanyl. At sentencing,
presentence investigation report.
{¶4} The trial court held a sentencing hearing at which the defendant, the attorneys for the
defendant, and the state of Ohio made statements. The trial court sentenced Clark to a total of
60 months in prison. It is from this judgment that Clark appeals, raising one assignment of
error for our review:
I. The trial court erred when it imposed a maximum and consecutive sentence
when it failed to consider mitigation factors, and the record does not support its
findings to impose this type of sentence.
{¶5} In his sole assignment of error, Clark contends that the trial court erred in sentencing
him to maximum, consecutive sentences.
{¶6} It is well settled that R.C. 2953.08(G)(2) does not permit this court to review a
felony sentence for an abuse of discretion. State v. Bush, 8th Dist. Cuyahoga No. 106392,
2018-Ohio-4213, ¶ 24. Instead, we may disturb a felony sentence only if we clearly and
convincingly find that either “the record does not support the sentencing court’s findings” or “the
sentence is otherwise contrary to law.” R.C. 2953.08(G)(2); State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 21-23.
{¶7} A sentence is contrary to law if it falls outside the statutory range for the particular
degree of offense or if the trial court fails to consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. State
v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. A trial court’s imposition of
a maximum term of imprisonment for a felony conviction is not contrary to law as long as the
sentence is within the statutory range for the offense and the court considers the purposes and
Clark told the trial court the drugs were for personal use.
principles of felony sentencing outlined in R.C. 2929.11 and the seriousness and recidivism
factors outlined in R.C. 2929.12. State v. West, 8th Dist. Cuyahoga No. 105568,
2018-Ohio-956, ¶ 9, 10 (stressing a trial court’s “full discretion” to impose the maximum
sentence as long as the sentence is within the statutory range and the court considered the
relevant statutory purposes and guidelines).
{¶8} The court’s sentencing journal entry in this case reflects that the court “considered
all required factors of the law” and found that “prison is consistent with the purpose of R.C.
2929.11.” The court’s statements that it considered the requisite statutory factors, alone, satisfy
its obligations under the sentencing statutes. Bush at ¶ 23, citing State v. Binford, 8th Dist.
Cuyahoga No. 105414, 2018-Ohio-90, ¶ 39.
{¶9} Clark concedes that the court articulated the requisite factors to impose consecutive
sentences on the record but complains that the facts do not support the imposition of consecutive
sentences. We take this to be a claim that “the record does not support the sentencing court’s
findings.” R.C. 2953.08(G)(2); Bush at ¶ 24.
{¶10} A trial court must make specified findings pursuant to R.C. 2929.14(C)(4) before it
imposes consecutive sentences. State v. Magwood, 8th Dist. Cuyahoga No. 105885,
2018-Ohio-1634, ¶ 62. The court must find: consecutive terms are required to protect the
public from future crime or to punish the offender, (2) consecutive terms are not disproportionate
to the seriousness of the conduct and danger posed to the public, and (3) either the offender
committed at least one offense while awaiting trial or sentencing, that multiple offenses were part
of a course of conduct and the harm caused was so great or unusual that a single term does not
adequately reflect the seriousness of the offender’s conduct, or that the offender’s criminal
history is such that consecutive terms are necessary to protect the public. R.C. 2929.14(C)(4);
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 22, 26. We find that
there is ample evidence in the record to support consecutive sentences.
{¶11} The trial court made the finding that consecutive sentences were required to protect
the public from future crime and to punish Clark based on his previous convictions. The court
also made the finding that consecutive sentences were not disproportionate to the seriousness of
the offender’s conduct or to the danger he poses to the public. The court noted that Clark had a
history of dealing heroin, fentanyl, and cocaine and had been dealing drugs since 2001 when he
was a juvenile. The court further noted that Clark “had never decided to change his actions,”
and had “not been rehabilitated or seen fit to change [his] ways.”
{¶12} Finally, the court found that Clark’s history of criminal conduct demonstrated that
consecutive sentences were necessary to protect the public from future crimes by the offender
based on his history of drug dealing and the fact that he had committed the current offense while
under indictment on another drug case.
{¶13} At one point during the hearing, the court asked Clark if he would name the person
or persons who supplied him with drugs to sell. Clark declined, saying he procured drugs to sell
from “the streets.” The court noted that Clark was a “street dealer,” as opposed to a larger “kilo
dealer,” but reasoned:
You know, the law already delineates between the kilo dealers and the street
dealers * * * you and I both know that the kilo dealers are not the people that we
get in court. The dealers we do get in court, they won’t tell us who their dealers
are. So the only way I have to protect the community is by taking any dealer off
the streets, and that’s what I intend to do.
{¶14} This court notes that Clark, who was 33 at the time of the sentencing hearing, has
at least 23 prior convictions, many of them felonies, and numerous traffic violations. At least
11 of those prior convictions were for drug trafficking and one was for having a weapon while
under disability. Clark violated the conditions of his probation and community control
sanctions in many of his cases and was given numerous chances by the courts to reform.
{¶15} Clark claims that the trial court was obligated to consider mitigating factors such as
his remorse. There is no evidence that the trial court did not consider Clark’s alleged remorse
for his crimes; but the court found that Clark’s long history of dealing drugs and that Clark “had
never decided to change his actions,” and had “not been rehabilitated or seen fit to change [his]
ways” outweighed any remorse he showed at the sentencing hearing.
{¶16} In light of the above, the trial court did not err in imposing maximum, consecutive
sentences. The sole assignment of error is overruled.
{¶17} Judgment affirmed.
It is ordered that appellee recover of 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.
LARRY A. JONES, SR., JUDGE
EILEEN A. GALLAGHER, A.J., and
ANITA LASTER MAYS, J., CONCUR