State v. Scott

[Cite as State v. Scott, 2022-Ohio-1486.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109689
v. :
PHILLIP SCOTT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 5, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-647488-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Lindsay Patton, Assistant Prosecuting
Attorney, for appellee.
James J. Hofelich, for appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Phillip Scott (“Scott”), appeals his sentence and
claims the following errors:
1. The trial court’s sentence of twelve and one-half years is contrary to
law.
2. As amended by the Reagan Tokes Act, the Revised Code’s sentences
for first and second-degree qualifying felonies violates the constitutions
of the United States and the state of Ohio.
After reviewing the record and applicable law, we affirm the trial court’s
judgment.
I. Facts and Procedural History
Scott pleaded no contest to two counts of felonious assault in violation
of R.C. 2903.11(A)(1) and 2903.11(A)(2) (Counts 1 and 2), one count of receiving
stolen property in violation of R.C. 2913.51(A) (C0unt 3), and one count of
falsification in violation of R.C. 2921.13(A)(3) (C0unt 4). The two counts of
felonious assault included one- and three-year firearm specifications. The trial court
found Scott guilty of all counts and, after merging the two counts of felonious
assault, sentenced him to 8 to 12 years on the merged felonious assault charge
alleged in Count 2, 18 months on the receiving stolen property charge alleged in
Count 3, and six months in the county jail on the falsification charge alleged in
Count 4.
The trial court ordered the indefinite 8-to 12-year sentence on Count 2
to be served consecutive to the 18-month sentence on Count 3 for an aggregate
minimum sentence of 9.5 years and an aggregate maximum sentence of 13.5 years
on these base charges. The six-month jail sentence on Count 4 was ordered to be
served concurrently with the sentences on Counts 2 and 3. The court ordered the
sentences on the base charges to be served consecutive to the three-year sentence
on the attendant firearm specifications for an aggregate indefinite sentence of 12.5
to 16.5 years. Scott now appeals his sentence.
II. Law and Analysis
A. Consecutive Sentences
In the first assignment of error, Scott argues his consecutive sentences
are contrary to law because they were not supported by the record.
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, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, an
appellate 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.” The imposition of consecutive sentences is contrary to
law if a trial court fails to make the findings mandated by R.C. 2929.14(C)(4). State
v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
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 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.
Scott does not dispute that the trial court made all the necessary
findings; he contends the court’s findings are not supported by the record. Where
the trial court made the requisite consecutive-sentencing findings, R.C.
2953.08(G)(2) requires this court to affirm an order of consecutive service unless
we “clearly and convincingly” find that the record does not support the court’s
findings in support of consecutive sentences. State v. Simmons, 8th Dist. Cuyahoga
No. 107144, 2019-Ohio-459, ¶ 11. This is a deferential standard of review. State v.
Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).
In accordance with R.C. 2929.14(C)(4), the court found (1) that the
harm to the victim was so great and unusual that a single sentence would not
adequately reflect the seriousness of the offenses, (2) that consecutive sentences
were necessary to protect the public and to punish Scott, and (3) that consecutive
sentences were not disproportionate to the seriousness of Scott’s conduct. (Tr. 48.)
Scott does not dispute the fact that the trial court made the necessary
finding for the imposition of consecutive sentences. Scott argues instead that
consecutive sentences are not supported by the record because he took
responsibility for his actions by pleading no contest even though the state did not
offer any reduction in the charges; he told police where to find the shell casing from
the bullet he fired at the victim, after initially misleading them; he apologized to the
victim’s family; and this was the first time he was sentenced for a felony offense.
Scott contends the court ignored these facts. Scott ignores the abhorrent nature of
his conduct.
The victim, a 20-year-old autistic man, asked Scott if he could buy five
dollars worth of marijuana. Scott took the victim’s money, told the victim to “get
lost,” and then shot the victim in the back as the victim was walking away. (Tr. 31.)
The victim was shot in the spine, was immediately incapacitated, and fell in the road.
When police arrived on the scene, Scott pretended to be a good Samaritan and gave
police a fake description of the alleged perpetrator. (Tr. 31.) Police noticed that
Scott’s girlfriend was behaving strangely and patted her down for officer safety.
During the pat down, police discovered the defaced 9 mm handgun Scott used to
shoot the victim in his girlfriend’s boot. (Tr. 31.)
Police gave Scott Miranda warnings, and Scott confessed to shooting
the victim. Thereafter, he showed police where they could find the 9 mm shell casing
he had hidden prior to their arrival. (Tr. 31-32.) While Scott was incarcerated
during the pendency of the case, he made recorded phone calls during which he
stated that “he tried to smoke the victim, but couldn’t quite get the job done.”
(Tr. 33.) In another call, he admitted that “he was trying to kill the victim that day,
but didn’t finish the job.” (Tr. 33.)
At the sentencing hearing, the victim’s mother informed the court that
as a result of the shooting, the victim will have to take medication for the rest of his
life. (Tr. 42-43.) The victim underwent several surgeries, including the partial
removal of his stomach, and experienced “excruciating pain.” (Tr. 43.) He had
completed 11 months of a 12-month program to become a licensed barber, but now
he is unable to take care of himself, and he is afraid to leave home. (Tr. 44.)
Moreover, Scott contradicted the statement he gave to police during
the presentence investigation by claiming the victim entered his home and that he
was afraid. (Tr. 39-40.) Scott told the court at sentencing that “I was just afraid
what might have happened to me at the time.” (Tr. 39.) However, as the victim’s
mother observed, Scott shot the victim in the back and “you cannot be afraid of him
if he’s going in an opposite direction. So to shoot him in his back you are not in fear.”
(Tr. 42.) Thus, Scott’s claim that he “accepted responsibility for his actions” was not
sincere. Under these circumstances, we find that consecutive sentences are
supported by the record.
The first assignment of error is overruled.
B. Reagan Tokes
In the second assignment of error, Scott argues his indefinite sentence
under the Reagan Tokes Act is unconstitutional. He contends the Reagan Tokes Act
violates his Sixth Amendment right to a jury trial, the separation-of-powers
doctrine, and due process of law.
In accordance with this court’s en banc decision in State v. Delvallie,
8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, the constitutional challenges
presented in this appeal are overruled.
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. The defendant’s
conviction having been affirmed, any bail pending 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
MICHELLE J. SHEEHAN, J., CONCURS;
SEAN C. GALLAGHER, A.J., CONCURS (WITH SEPARATE OPINION)
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in
Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes
Law are unconstitutional.
SEAN C. GALLAGHER, A.J., CONCURRING:
I fully concur with the majority, but write separately to express my
growing concern with the accuracy of sentencing entries from jurisdictions around
the state. Although the majority accurately recites the sentence imposed, the
underlying entry at best can best be described as confusing, forcing an interpretation
of a sentence that was not timely challenged:
The court imposes a prison term of 3 year(s) on the specifications to be
served prior to and consecutive with a minimum prison term of 6
year(s), 6 month(s) and a maximum prison term of 10 year(s), 6
month(s) on the underlying offense(s). The total stated prison term is
9 years and 6 months to 13 years and 6 months at the Lorain
Correctional Institution.
Count(s) 1 merge into Count 2. State elects to proceed as to Count 2,
F2: 8 year(s), 1 and 3 year frm spec merge, 3 year to be served prior to
and consecutive to underlying offense, 3 years mandatory post release
control.
Count 3: F4, 18 month(s), up to 3 years discretionary post release
control.
Count 4: Ml, 6 month(s).
Count 1 and 2 are allied offenses – No conviction in Count 1.
Counts 2 and 3 to run consecutive to each other, Count 4 to run
concurrent to Counts 2 and 3.
There are several errors in this journal entry. First, the journal
indicates a 6.5-year, stated minimum term was imposed, but it does not indicate
what count that sentence relates to, and even more problematic, there is no
indication the trial court judge imposed any such sentence on the offender.
Likewise, there is no clarity as to how or where the 10.5-year
maximum prison term was calculated or even if a 10.5-year maximum term was
possible.
In addition, Count 2 is a qualifying felony offense under R.C.
2929.144(A), meaning the court was required to impose a stated minimum term
under R.C. 2929.14(A)(2)(a). Instead, the journal entry simply indicates that the
underlying sentence imposed on Count 2 is “8 years.” That may well be the way that
term will be served under the auspices of the ODRC, but it is not how it should be
stated when imposed. Qualified felonies should be distinct from non-qualifying
definite terms.
Despite the inartful summary of the individual sentences, the result of
imposing the 3-year term for the firearm specification prior to and consecutive to
the 9.5 to 13.5 indefinite non-life term, is correct. Under R.C. 2929.144(B)(2), the
maximum term is calculated by adding all minimum terms on qualifying felony
offenses and all definite terms imposed that are consecutively imposed, to 50
percent of the longest sentence imposed for the most serious felony offense.
In this case, the maximum term on the indefinite non-life second-
degree felony offense, as correctly noted by the majority and ultimately arrived at in
the sentencing entry, is 13.5 years (8 + 1.5 + 4) (under R.C. 2929.144(B)(2)). Again,
the sentence imposed on the firearm specification is not included in the non-life
indefinite term.
The intent here is to add clarity to a nebulous area. All too often,
appellate courts — and inevitably the Ohio Department of Rehabilitation and
Correction, which must enforce the sentences — are facing situations in which the
sentencing entries do not reflect what was actually imposed or are not in compliance
with statutory requirements. Sentencing entries should be clear and not have to be
interpreted.
Many of the errors arise from a trial court’s attempt to provide a total
“global” sentence in each case, something not required by the statute or Supreme
Court case interpretation. In other words, no “global” sentencing advisement is
required. Judges must only advise and impose the maximum for each individual
term and state how those terms are to be served (whether concurrent or
consecutive). The reference in R.C. 2929.144(B)(2) to the maximum term relates to
the individual terms imposed in any given file. Absent clear legislative change or a
new interpretation by the Supreme Court, we still sentence by individual counts in
Ohio and not by a package. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245,
846 N.E.2d 824; State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d
163; State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988).
Further, courts are using colloquial references that are at times at
odds with statutory language. For example, R.C. 2929.14(A)(1)(a) and (A)(2)(a)
speak in terms of the “stated minimum term” for the non-life indefinite sentence,
potentially causing confusion with the trial court’s use of “stated prison term” to
include the aggregate of the sentences imposed on Counts 2 and 3, but excluding the
mandatory firearm specification. “Aggregate term,” is used only in the context of
consecutive sentences; it is limited to describing the aggregate of the consecutive
terms imposed. R.C. 2929.41(B)(3). “Stated prison term,” on the other hand, means
the combination of all prison terms imposed, including any credit for time spent in
jail. R.C. 2929.01(FF)(1). Thus, the legislature distinguishes between the stated
minimum prison terms, the aggregate term of imprisonment, and the overall stated
prison term.
In this case, that aggregate minimum term is 9.5 years, from the 8-
year minimum term imposed on Count 2 being imposed consecutive to the 1.5-year
term on Count 3, but that 9.5-year term is not the “stated prison term” as statutorily
defined because it omits the credit for time served and the mandatory sentence for
the firearm specification. Courts, including appellate courts, need to change the way
in which sentences are described, keeping closer to the statutory language whenever
possible.
The simplistic solution is to draft the sentencing entry according to
the express dictates of the relevant statutory scheme and adhere to the statutory
language therein, and for the parties to timely review the sentencing entry for
compliance with Ohio law.
In this case, the sentence imposed could be provided as follows (less
the illustrative parentheticals):
Count 2, surviving the merger of Count 1 and Count 2 — a three-year
term on the firearm specification (under R.C. 2929.14(B)(1)(a)) to be
served prior and consecutive to all other sentences imposed and the
minimum stated term of 8 years (under R.C. 2929.14(A)(2)(a)) and
maximum term of 13.5 years (under R.C. 2929.144(B)(2));
Count 3 — 18 months to be served consecutive to the sentence imposed
on Count 2 (and thus included within the maximum term calculation
under R.C. 2929.144(B)(2));
Count 4 — 6 months, to be served concurrent to all sentences (and
therefore excluded from the maximum term calculation under R.C.
2929.144(B)(2)).
There is a mandatory three-year term of postrelease control.
(If a summary is desired) In summary of the imposed sentences: the
defendant shall serve the three-year term on the firearm specification
(all the sentences imposed for those sentences should be aggregated
here since they are consecutive by operation of law) prior and
consecutive to the aggregate minimum term of 9.5 years (here all
minimum and definite terms to be consecutively served can be
aggregated into one aggregate minimum term), up to the maximum
term under S.B. 201 of 13.5 years (and any indefinite life term imposed
if relevant can be added here since the indefinite non-life felony
sentences would be served before the indefinite life terms under Ohio
Administrative Code 5120-2-03.1(M)).
The reason for the above is that all counts to which the defendant
pleaded or was found guilty must include the underlying sentence and any attendant
sentence on the surviving specification imposed under R.C. 2929.14(B), and any
sentence arising from the specification must be imposed consecutive to the
underlying offense and any other sentence. The entry should explain which counts
are to be consecutively served, even if the consecutive nature of the sentence arises
by law, and for clarity should indicate which sentences are to be served concurrently
since those impact the maximum term calculation under R.C. 2929.144(B). The goal
is to clearly articulate the intended sentence in a manner that avoids the need to
interpret the sentence and to use the language of the statutory sentencing scheme
instead of colloquially understood phrases that potentially conflict with statutory
language.
If the court is set on giving a global advisement, it should simply
indicate the maximum amount of time possible. In this instance, the maximum
possible sentence would be 16.5 years in practical terms explains the effect of the
sentence imposed to the offender. Although explaining the sentence to the
defendant in simplistic terms has its place, the recitation of the sentence in the
sentencing entry should be more formal, adhering to statutory nomenclature.
Regardless, in light of the arguments raised, I fully concur with the
majority.