State v. Mitchell

[Cite as State v. Mitchell, 2022-Ohio-3818.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111297
v. :
CHRISTIAN MITCHELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 27, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-662976-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eric Collins, Assistant Prosecuting
Attorney, for appellee.
Kelley & Ferraro, LLP, and Carl W. Sullivan, for appellant.
SEAN C. GALLAGHER, A.J.:
Christian Mitchell appeals the sentence imposed after he pleaded
guilty to felonious assault, in violation of R.C. 2903.11(A)(1). For the following
reasons, we affirm.
Mitchell and Tavion Hardy invaded the two victims’ apartment after
one of the victims confronted Mitchell and several others about noise being made
outside the apartment building. After the verbal confrontation outside, the victim
returned to his apartment. Mitchell followed, knocked on the door, and then forced
his way inside with Hardy in tow. The second victim awoke at the sounds of the
struggle. She grabbed a baseball bat to try and help the other victim. Mitchell
grabbed the baseball bat and hit that victim over her head while Hardy continued
the assault on the other victim. Forensic evidence from the bat identified Mitchell
as the offender responsible for hitting the victim over the head and established his
identity as one of the persons who invaded the victims’ home.
During the plea colloquy, the trial court advised Mitchell that the
felonious assault offense was a qualifying, second-degree felony offense under R.C.
2929.144 and 2929.14(A)(2)(a). At sentencing, the trial court imposed a five-year
stated minimum term of imprisonment, along with a maximum term of 7.5 years.
After making the findings required under R.C. 2929.14(C)(4), the trial court
imposed that sentence to be served consecutive to a six-year, stated minimum term
of imprisonment Mitchell was already serving in Cuyahoga C.P. No. CR-648045-B
for a robbery committed against a wheelchair-bound victim. Tr. 40:10-17.
Mitchell appeals the sentence imposed advancing two arguments: (1)
that the sentencing structure enacted under the Reagan Tokes Law is
unconstitutional; and (2) that the consecutive sentencing findings are not clearly
and convincingly supported by the record because Mitchell did not have a felony
conviction when he committed the burglary.1 Neither argument has merit.
With respect to the nonlife indefinite sentence imposed under R.C.
2929.144 and 2929.14(A)(2)(a), Mitchell advances the same arguments challenging
the constitutional validity of the Reagan Tokes Law addressed in State v. Delvallie,
2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), and thus it appears this argument is
advanced to preserve the claim for further review. In light of Delvallie, we must
conclude that Mitchell’s sentence does not violate his constitutional rights based on
the arguments presented. That assignment of error is overruled.
Finally, Mitchell claims that the trial court’s decision to impose the
five-year term of imprisonment consecutive to a term of imprisonment that was
already imposed in Mitchell’s other case is not supported by the record. According
to Mitchell, the record does not support the finding that consecutive service of the
sentence was necessitated by his criminal history under R.C. 2929.14(C)(4)(c).
Felony sentences are reviewed under the standard provided in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 16. Before a trial court may impose consecutive sentences, the court must
make specific findings mandated by R.C. 2929.14(C)(4) and then incorporate those
findings in the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 37. The trial court is not required to give a rote recitation of
1 The assignments of error have been reordered for the ease of discussion.
the statutory language. Id. “[A]s 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. Appellate review of the underlying findings is narrower. A reviewing
court may overturn the imposition of consecutive sentences only if it clearly and
convincingly finds that either (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.” R.C. 2953.08(G)(2). Thus, in order to reverse the imposition of consecutive
sentences, the defendant must clearly and convincingly demonstrate that the record
does not support the sentencing court’s findings under R.C. 2929.14(C)(4). State v.
Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 28.
R.C. 2929.14(C)(4) authorizes the court to order consecutive service
of multiple sentences if consecutive service (1) is necessary to protect the public from
future crime or to punish the offender; (2) is not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public; and (3)
either (a) the offender committed the offense while awaiting trial or sentencing,
under community control monitoring, or under postrelease control for a prior
offense; (b) two or more of the offenses caused harm so great and unusual that no
single term for any offense adequately reflects the seriousness of the offender’s
conduct; or (c) the offender’s history of criminal conduct demonstrates the necessity
of consecutive sentences to protect the public from future crime. State v. Smeznik,
8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709, ¶ 6.
Aside from the constitutional claim with respect to the Reagan Tokes
Law, there is no other argument presented that Mitchell’s sentence is contrary to
law and Mitchell concedes that the trial court made the necessary findings and
incorporated those findings into the sentencing entry. Mitchell instead challenges
the factual predicate of the third finding, claiming that he has “no other criminal”
history because the other offense was committed after the date of the offense in this
case; in other words, according to Mitchell he did not have a purported criminal
history at the time he committed the offense.2 Our review is therefore limited to
determining whether Mitchell has demonstrated by clear and convincing evidence,
that the record does not support the finding that “the offender’s history of criminal
conduct demonstrates that consecutive sentences are necessary to protect the public
from future crime by the offender” under R.C. 2929.14(C)(4)(c).
In this case, the trial court found that consecutive service of the
sentence imposed is
[(1)] necessary to protect the public from future crime as well as to
adequately punish you for the conduct at issue in the two cases.
Furthermore, [(2)] * * * [is] not disproportionate to the seriousness of
[Mitchell’s] conduct and to the danger that [he] pose[s] to the public.
2 Mitchell claims that his criminal history cannot include conduct that occurred
after the date of the offense in the underlying case. It should be noted that Mitchell
provides no authority for the proposition that a consecutive sentencing determination
hinges on the order in which multiple crimes were committed. Mitchell committed
separate crimes within a short time period that resulted in individual indictments. The
cases proceeded on different timelines, resulting in the case for the later committed crime
being final before the underlying case. According to a review of the sentencing
proceedings, the trial court, having the benefit of presiding over both cases, considered
the whole of Mitchell’s criminal conduct. Consideration of a criminal history does not
distinguish between dates of offenses but, instead, should focus on consideration of the
conduct itself.
Additionally, [(3)] * * * at least two of these multiple offenses were
committed as part of one or more courses of conduct and that the harm
caused by the two or more of the multiple offenses 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 [his] conduct.3
Thus, the trial court made the two mandatory findings under R.C. 2929.14(C)(4) and
the additional finding-in-the-alternative under R.C. 2929.14(C)(4)(b) that two of the
offenses were committed as part of one or more courses of conduct causing harm
that was so great or unusual that no single term sufficed. The trial court did not
make the criminal history finding under R.C. 2929.14(C)(4)(c).
Mitchell’s argument is nonetheless based on challenging the criminal
history finding under R.C. 2929.14(C)(4)(c) — that the offender’s history of conduct
demonstrates that consecutive sentences are necessary to protect the public from
future crime. This misplaced argument is overruled. The legislature authorized the
imposition of consecutive sentences if three findings are made. The last of the
findings contains three independent alternatives under R.C. 2929.14(C)(4)(a)-(c),
only one of which is necessary to sustain the consecutive sentence. State v. Rapier,
8th Dist. Cuyahoga No. 108583, 2020-Ohio-1611, ¶ 10; State v. Black, 8th Dist.
3 During the sentencing hearing, Mitchell referenced the robbery conviction in
Cuyahoga C.P. No. CR-648045 as having been committed a month after the felonious
assault in this case. The underlying case was delayed, however, and the cases proceeded
through separate proceedings instead of being handled together as would be a customary
practice. Tr. 35:18-25. The trial court’s sentencing considerations included knowledge of
what transpired in both cases. Tr. 39:9-25. Mitchell’s conviction in CR-648045 was based
on his robbing a disabled victim who required the use of a wheelchair. The facts of the
other case are not otherwise part of this record, but Mitchell has not challenged the trial
court’s stated reliance on the facts of the unrelated case as it relates to the consecutive
sentence findings. App.R. 16(A)(7).
Cuyahoga No. 108335, 2020-Ohio-188, ¶ 11 (consecutive sentences may be imposed
if the court “also finds any of the following” findings under R.C. 2929.14(C)(4)(a)(c)
(Emphasis sic.)); State v. Nave, 8th Dist. Cuyahoga No. 107032, 2019-Ohio-348,
¶ 6. The trial court made the alternative finding, under R.C. 2929.14(C)(4)(b), which
is well within the statutory requirements. Inasmuch as the trial court imposed the
consecutive sentence under R.C. 2929.14(C)(4)(b), we need not consider whether
the record also supports a finding under subdivision (C)(4)(c) of that section since
only one of the alternative findings is required. See Rapier; Black; Nave.
Mitchell’s criminal history, or any lack thereof, was not a basis for the
imposition of consecutive service in this case, and therefore, there is no need to
review the record to determine whether that finding is supported by the record.
Accordingly, Mitchell’s reliance on State v. Batiste, 2020-Ohio-3673, 154 N.E.3d
1220, ¶ 14 (8th Dist.), in which the panel concluded that the offender clearly and
convincingly lacked a demonstrable history of criminal conduct under R.C.
2929.14(C)(4)(c), is misplaced.4 Batiste is inapplicable. Even if assumed for the
4 Batiste concluded that a juvenile adjudication can only be considered under the
criminal history finding of R.C. 2929.14(C)(4)(c) if those adjudications are “extensive.”
According to the Batiste panel, a single juvenile adjudication, which occurred nine years
before the felony conduct, is insufficient to demonstrate that the history of criminal
conduct warrants consecutive service of a sentence. R.C. 2929.14(C)(4)(c), however,
requires consideration of the offender’s “history of criminal conduct.” Batiste applies to
a limited set of circumstances. “[I]t is ‘widely accepted’ that an offender’s juvenile history
can be used as prior criminal history for the purpose of imposing consecutive sentences.”
State v. Brown, 2020-Ohio-4474, 158 N.E.3d 972, ¶ 56 (8th Dist.), quoting Batiste at
¶ 20; State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243, ¶ 141; and State
v. Bromagen, 1st Dist. Hamilton No. C-120148, 2012-Ohio-5757, ¶ 8-9; see also State v.
Curtis, 2d Dist. Miami No. 2021-CA-19, 2022-Ohio-1691, ¶ 12.
sake of the discussion that the record does not clearly and convincingly support the
finding under R.C. 2929.14(C)(4)(c) despite Mitchell’s history including the other
felony conviction, the trial court made the finding under subdivision (C)(4)(b) that
the harm caused to multiple victims was so great and unusual that no single term
for any offense adequately reflects the seriousness of the offender’s conduct. That
finding satisfied the consecutive sentencing requirements.
Mitchell has not challenged the factual underpinnings of the
alternative finding the trial court made in this case, and therefore, we cannot find
error in the imposition of consecutive sentences. App.R. 16(A)(7). Mitchell’s final
argument is overruled.
The conviction is 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 appeal 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.
_
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR
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.