State v. Sylvester

[Cite as State v. Sylvester, 2022-Ohio-3798.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 21AP-530
v. : (C.P.C. No. 20CR-3727)
Kareem J. Sylvester, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 25, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Bellinger & Donahue, and Kerry M. Donahue, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Kareem J. Sylvester, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to a guilty plea entered by appellant on August 17, 2021 in which he pled guilty to one count
of aggravated burglary, in violation of R.C. 2911.11, a felony of the first degree, and one
count of abduction, in violation of R.C. 2905.02, a felony of the third degree. On
September 20, 2021, the trial court issued a judgment entry which reflected the guilty plea
and imposed an aggregate prison sentence of 10-12 years. (Sept. 16, 2021 Jgmt. Entry.) For
the reasons that follow, we reverse the judgment of the trial court.
No. 21AP-530 2
I. Facts and Procedural History
{¶ 2} On August 13, 2020, appellant was indicted by the Franklin County Grand
Jury on two counts: one count of aggravated burglary in violation of R.C. 2911.11, a felony
of the first degree, and one count of kidnapping in violation of R.C. 2905.01, a felony of the
first degree. On August 18, 2020 an arraignment was held where appellant entered a
general plea of not guilty and bond was set. The matter was then scheduled for trial.
{¶ 3} On August 16, 2021, the case proceeded to trial. The following day, appellant
changed his previously entered not guilty plea to a plea of guilty to Count 1, aggravated
burglary, a felony of the first degree, and a lesser included offense of Count 2, abduction, a
felony of the third degree. The parties entered into a jointly recommended sentence that
stated on the plea form "[a] 4 years and 9 month[s] ODRC sanction. State will no[t] object
to Judicial release after 1 year into the CBCF program, provided the defendant has a good
ISR." (Entry of Guilty Plea at 1.) The court accepted appellant's plea and set the matter for
a sentencing hearing on September 16, 2021. The court further advised appellant that
although there was a joint recommended sentence, should he fail to appear for sentencing,
the court would not be inclined to follow the joint recommendation. (Aug. 17, 2021 Tr. at
15.)
{¶ 4} At the plea hearing, the facts as recited by counsel for the plaintiff-appellee,
State of Ohio, were as follows:
On Friday, July, 17th of 2020, Madison Township officers were
dispatched on a report of domestic violence. The victim, [D.C.],
advised that her ex-boyfriend, the defendant, Kareem Sylvester
- - who she has a child in common, kicked in her side door of
her residence [on] Noe Bixby Road, Columbus, Franklin
County, Ohio.
[D.C.] stated this started Thursday, July 16th, at approximately
midnight. He came into the house, turned over the kitchen
table and shattered the oven door, picked up chairs and threw
them at the victim and then hit the victim with closed fists in
her head, face and torso. The defendant also hit the victim in
her torso with a broom multiple times. And when she yelled,
he told her to be quite [sic] as to not wake their son. The
defendant strangled the victim. And as she kicked him off, he
then attempted to suffocate her with the couch cushions. He
grabbed her by the hair and drug her through the house.
No. 21AP-530 3
He then made her clean up the mess in the kitchen. She went
to get a drink of water and she sat down. This upset the
defendant and he grabbed a container of Cheese Puffs from the
top of her refrigerator and stuffed them in her mouth, choking
her, forcing her to eat the whole container.
The defendant told her she better not touch the doors or her
phone or he would kill her. And he also told her if she told
anyone what happened, he would get out in three days and kill
her.
The next morning, the victim was able to get away from the
defendant when she stated she had to go to work that day. She
left, did report to work, got her child to safety and then went to
the hospital.
All of this happened in Franklin County, State of Ohio.
(Aug. 17, 2021 Tr. at 4-5.)
{¶ 5} On September 16, 2021 when the case was called at 10:05 a.m., appellant was
initially not present at court. (Sept. 16, 2021 Tr. at 2-3.) Appellant's trial counsel advised
the court that he had gone looking for appellant at about ten or fifteen after 9:00 a.m. and
that he found him outside.1 Id. at 2. Appellant's trial counsel further advised the court that
appellant had told him he no longer wanted his representation, and that counsel would be
seeking to withdraw. Id. at 3-4. Trial counsel for the state then made a statement that the
victim was present and had a written statement to present. Counsel for the state further
advised the court that it was "no longer beholden to the joint recommendation." Id. at 4-5.
The trial court then issued a capias for appellant. Id. at 5. After a brief conversation
between the trial court and defense counsel regarding attempting to contact appellant to
advise him to turn himself in, at 10:09 a.m., the trial court adjourned the proceedings. Id.
at 5-6.
{¶ 6} At 10:26 a.m., the proceedings continued with appellant present in the
courtroom. The transcript reveals, however, that appellant refused to approach the counsel
table as requested by the trial court. Id. at 6-7. After being ordered by the trial court several
times to come up to the counsel table, and refusing each time to do so, the court ordered
1It is not clear from the transcript whether "outside" means outside the courtroom in the hallway or outside
the courthouse entirely.
No. 21AP-530 4
appellant be taken into custody and the proceedings again adjourned at 10:30 a.m. Id. at
7-8.
{¶ 7} At approximately 11:30 a.m., the proceedings continued with appellant
present in the courtroom. Id. at 8. Upon being questioned by the trial court, appellant
confirmed he wanted to terminate his defense counsel's representation of him. Id.
Appellant further confirmed that he wished to represent himself at the sentencing hearing.
Id. at 9. The trial court then permitted appellant's trial counsel to withdraw from further
representation. Id. at 10.
{¶ 8} The transcript reveals that the trial court proceeded to explain the purpose of
the sentencing hearing and that appellant had the right and ability to present information
to the court "about why I should lean towards the lower sentence versus a higher sentence."
Id. at 11. The trial court permitted appellant to obtain a folder of documents he had brought
with him to the hearing and appellant indicated he understood the purposes of the
sentencing hearing. Id. at 12-13. The trial court then stated that the hearing would proceed,
and appellant would be permitted to represent himself for purposes of the sentencing
hearing. Id. at 14.
{¶ 9} Trial counsel for the state indicated that the victim, [D.C.] was present and
wished to make a statement, and the victim's written statement was read on her behalf by
a victim advocate. Id. at 14-15. Amongst other things, [D.C.] stated that "[f]our years nine
months is not enough. It's not enough for what you did to me. It's not enough for what you
continue to do." Id. at 18.
{¶ 10} The trial court then gave appellant the opportunity to speak and give
mitigation on his behalf. Id. at 19-20. Appellant made a lengthy series of statements that
the trial court interpreted as an oral motion to withdraw his guilty plea. Id. at 20-24. After
reviewing the factors to be considered on a motion to withdraw a guilty plea, the trial court
overruled the motion. Id. at 24-29.
{¶ 11} After some additional discussion, the trial court sentenced appellant to 8
years on Count 1 and 24 months on Count 2 to run consecutively. Id. at 31. The trial court
recognized an aggregate indefinite sentence of 10-12 years due to the crime being a violation
No. 21AP-530 5
of the Reagan Tokes Act.2 (Id.; Sept. 20, 2021 Jgmt. Entry at 1.) The transcript shows that
the trial court concluded the hearing without placing any findings on the record pertaining
to the imposition of consecutive sentences. (Sept. 16, 2021 Tr. at 32-34.)
{¶ 12} This timely appeal followed, and each of the parties filed an opening brief.
Appellant's opening brief consisted of five assignments of error, four of which pertained to
the constitutionality of the Reagan Tokes Act. On May 12, 2022, appellant's previous
appellate counsel was permitted to withdraw, and new counsel was appointed to represent
appellant. (May 12, 2022 Journal Entry.) Appellant was subsequently granted leave to file
a supplemental brief instanter, wherein he asserted three additional purported
assignments of error. (June 10, 2022 Journal Entry; June 6, 2022 Supp. Brief.)
{¶ 13} On September 13, 2022, this court issued a stay, sua sponte, based upon the
four assignments of error pertaining to the constitutionality of the Reagan Tokes Act. (Sept.
13, 2022 Journal Entry.) On September 28, 2022 appellant was granted leave to withdraw
these four assignments of error, and this court issued an order lifting the stay on the same
day and returned the matter to the docket. (Sept. 28, 2022 Journal Entry.) The parties
jointly waived oral argument on September 29, 2022. (Sept. 29, 2022 Not. of Joint Waiver
of Oral Argument.)
{¶ 14} This matter is now submitted to the court on the briefs.
II. Assignments of Error
{¶ 15} Appellant asserts the following original assignment of error and three
supplemental assignments of error for our review:
[I.] The record does not support the trial court's imposition of
consecutive sentences as the court failed to make any of the
required findings under R.C. 2929.14(C)(4) as mandated the
[sic] Ohio Supreme Court in State v. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177.
[Supp. I.] The lower court committed error when it failed to
provide an indigent defendant with competent counsel to
represent him at sentencing.
2 Pursuant to the consecutive sentencing provisions under R.C. 2929.144(A)(2), the aggregate indefinite
sentence was required to be 10-14 years. The state, however, did not appeal this error.
No. 21AP-530 6
[Supp. II.] The sentence of the court violated the spirit of the
plea agreement.
[Supp. III.] The sentence of the car [sic] was so far in excess of
the agreed sentence as to amount to cruel and unusual
punishment based on the circumstances.
III. Discussion
A. Assignment of Error I
{¶ 16} In his first assignment of error, appellant asserts the trial court erred in
ordering him to serve consecutive sentences. We agree.
{¶ 17} We begin our discussion by observing that pursuant to R.C. 2953.08(G)(2),
an appellate court will reverse a trial court's sentencing decision "only if it determines by
clear and convincing evidence that the record does not support the trial court's findings
under relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that "which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
This court must "look to the record to determine whether the sentencing court considered
and properly applied the statutory guidelines and whether the sentence is otherwise
contrary to law." State v. Reeves, 10th Dist. No. 14AP-856, 2015-Ohio-3251, ¶ 4.
{¶ 18} " 'Under Ohio law, absent an order requiring sentences to be served
consecutively, terms of incarceration are to be served concurrently.' " State v. Guy, 10th
Dist. No. 17AP-322, 2018-Ohio-4836, ¶ 56, quoting State v. Sergent, 148 Ohio St.3d 94,
2016-Ohio-2696, ¶ 16, citing R.C. 2929.41(A). A trial court may, in its discretion, impose
consecutive sentences for multiple prison terms pursuant to R.C. 2929.14(C)(4). Id. Before
imposing consecutive sentences, the trial court must find that: (1) the consecutive sentence
is necessary to protect the public from future crime or to punish the offender, (2)
consecutive sentences are not disproportionate to the seriousness of the offender's conduct
and to the danger the offender poses to the public, and (3) at least one 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.
No. 21AP-530 7
(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). Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive
terms of imprisonment, a trial court is required to make at least three distinct findings: (1)
that consecutive sentences are necessary to protect the public from future crime or to
punish the offender; (2) that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public;
and (3) that one of the subsections (a), (b) or (c) applies. State v. Price, 10th Dist. No. 13AP-
1088, 2014-Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177.
{¶ 19} In Bonnell, the Supreme Court of Ohio held that a trial court seeking to
impose consecutive sentences must make the findings required by R.C. 2929.14(C)(4) "at
the sentencing hearing and incorporate its findings into its sentencing entry, but it has no
obligation to state reasons to support its findings." Bonnell at syllabus. Nor is the trial
court "required to give a talismanic incantation of the words of the statute, provided that
the necessary findings can be found in the record and are incorporated into the sentencing
entry." Id. at ¶ 37. "[A] word-for-word recitation of the language of the statute is not
required," and "as long as the reviewing court can discern that the trial court engaged in the
correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld." Id. at ¶ 29.
{¶ 20} "In determining whether the trial court engaged in the correct analysis, an
appellate court 'may liberally review the entirety of the sentencing transcript to discern
whether the trial court made the requisite findings.' " State v. Hairston, 10th Dist. No.
17AP-416, 2017-Ohio-8719, ¶ 8, quoting State v. Stephen, 7th Dist. No. 14 BE 0037, 2016-
Ohio-4803, ¶ 22. Furthermore, "once the trial court makes the factual findings required by
R.C. 2929.14(C)(4), an appellate court may overturn the imposition of consecutive
sentences only if it finds, clearly and convincingly, that the record does not support the
No. 21AP-530 8
sentencing court's findings or that the sentence is otherwise contrary to law." State v.
Hargrove, 10th Dist. No. 15AP-102, 2015-Ohio-3125, ¶ 22.
{¶ 21} Here, the state concedes the trial court erred in imposing consecutive
sentences without making the requisite findings under R.C. 2929.14(C)(4), and we agree
that it was error to impose consecutive sentences on appellant in the absence of making
these findings at the sentencing hearing. Furthermore, although appellant urges us to
remand for a full de novo sentencing with instructions to give the sentence originally jointly
recommended by the parties, we decline to do so for the following reasons.
{¶ 22} First, the record is clear that at the plea hearing the trial court admonished
appellant that if he failed to appear for the sentencing hearing the trial court would not be
inclined to follow the jointly recommended sentence. (Aug. 17, 2021 Tr. at 15.) The record
is equally clear that when appellant was called on September 16, 2021 for his sentencing
hearing, he was not present. (Sept. 16, 2021 Tr. at 2-3.) Although appellant eventually
appeared, the fact remains he was not present when he was mandated to be so.
{¶ 23} Moreover, a trial court is "not bound by a jointly recommended sentence" in
any event. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 28. Accordingly, the
trial court's ultimate sentencing decision was a matter within its discretion and does not
establish bias or prejudice. See In re Disqualification of Economus, 74 Ohio St.3d 1230,
1231 (1991) (judge's refusal to accept plea agreement is not grounds for disqualification).
{¶ 24} Therefore, we further find the appropriate remedy in this case is a limited
remand to address whether the findings under R.C. 2929.14(C)(4) support consecutive
sentences and appellant's first assignment of error is sustained.
B. Supplemental Assignments of Error I, II, and III
{¶ 25} We have already determined that the trial court erred in imposing
consecutive sentences without making the findings required under R.C. 2929.14(C)(4).
Thus, as discussed above, the matter must be remanded to the trial court for resentencing
on the issue of consecutive sentences in any event.
{¶ 26} Accordingly, we overrule each of appellant's three supplemental assignments
of error as being moot.
No. 21AP-530 9
IV. Disposition
{¶ 27} Based on the foregoing, appellant's first assignment of error is sustained, and
his first, second, and third supplemental assignments of error are overruled as moot. The
judgment of the Franklin County Court of Common Pleas is reversed, and this cause is
remanded for further proceedings consistent with this decision.
Judgment reversed and cause remanded.
SADLER and McGRATH, JJ., concur.