State v. Kamal

[Cite as State v. Kamal, 2021-Ohio-2261.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109781
v. :
WALI KAMAL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: July 1, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-644213-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Marcus A. Henry, Assistant Prosecuting
Attorney, for appellee.
Allison S. Breneman, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant Wali Kamal brings this appeal challenging his
eight-year prison sentence for two counts of gross sexual imposition. Appellant
argues that the trial court erred in imposing consecutive sentences. After a thorough
review of the record and law, this court affirms appellant’s sentence but remands
the matter to the trial court for the sole purpose of issuing a nunc pro tunc
sentencing entry incorporating all of the consecutive sentence findings the trial
court made at the sentencing hearing.
I. Factual and Procedural History
The instant matter arose from an ongoing sexually abusive relationship
between appellant and the victim in this case, M.R. Although appellant abused the
victim for more than one year, this appeal pertains to an incident that occurred on
September 14, 2019. At the time, the victim was 12 years old, and appellant was in
a relationship with the victim’s mother.1
The victim alleged that appellant came into her bedroom and ordered
her to come downstairs. According to the Cleveland Police Department’s Case
Information Form, appellant threatened that the victim would be “homeless on the
street” if she did not come downstairs with him. Appellant proceeded to sexually
assault the victim in the living room. He kissed the victim’s face, lifted her shirt,
touched and sucked her breasts, and touched her buttocks. The victim, who was 12
years old at the time, told appellant no and to stop, but he did not comply. When
the victim disclosed the abuse to her cousins in 2019, she alleged that she had been
sexually abused for more than one year.
On September 30, 2019, in Cuyahoga C.P. No. CR-19-644213-A, a
Cuyahoga County Grand Jury returned a four-count indictment charging appellant
1 Appellant is referenced as the victim’s “stepfather” in the record. (Tr. 48.)
with (1) – (2) gross sexual imposition, third-degree felonies in violation of R.C.
2907.05(A)(4), (3) kidnapping, a second-degree felony in violation of R.C.
2905.01(A)(4), with a furthermore clause alleging that the victim was under the age
of 18 and appellant released the victim in a safe place unharmed, and a sexual
motivation specification, and (4) violating a protection order, a third-degree felony
in violation of R.C. 2929.27(A)(1), with a furthermore clause alleging that appellant
violated the protection order while committing a felony offense. Count 1 pertained
to appellant touching the victim’s breasts, and Count 2 pertained to appellant
touching the victim’s buttocks. Appellant pled not guilty to the indictment during
his October 3, 2019 arraignment.
The parties reached a plea agreement during pretrial proceedings.
Under the plea agreement, Counts 1 and 2 were amended to add the name of the
victim, M.R. On February 10, 2020, appellant pled guilty to Counts 1 and 2, as
amended. Counts 3 and 4 were nolled. The trial court ordered a presentence
investigation report and set the matter for sentencing.
The trial court held a sentencing hearing on March 16, 2020. The trial
court sentenced appellant to a prison term of eight years: four years on each gross
sexual imposition count, to run consecutively with one another. The trial court
classified appellant a Tier II sex offender and reviewed appellant’s reporting
requirements.
On June 23, 2020, appellant filed the instant appeal challenging his
eight-year prison sentence. Appellant assigns one error for review:
I. The trial court erred in imposing consecutive sentences.
II. Law and Analysis
In his sole assignment of error, appellant 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.”
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.
Conformity 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.’” State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v.
Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). To this end, a reviewing
court must be able to ascertain from the record evidence to support the trial court’s
findings. Bonnell at ¶ 29. “A trial court is not, however, required to state its reasons
to support its findings, nor is it required to [recite verbatim] the statutory language,
‘provided that the necessary findings can be found in the record and are
incorporated in the sentencing entry.’” State v. Sheline, 8th Dist. Cuyahoga No.
106649, 2019-Ohio-528, ¶ 176, quoting Bonnell at ¶ 37.
In the instant matter, appellant concedes that the trial court made the
required R.C. 2929.14(C)(4) findings in imposing consecutive sentences. The record
reflects that the trial court made the requisite findings pursuant to R.C.
2929.14(C)(4) in imposing consecutive sentences. In making the first finding under
R.C. 2929.14(C)(4), the trial court stated, “consecutive sentences are necessary to
protect our community and to punish you[.]” (Tr. 95.)
In making the second finding under R.C. 2929.14(C)(4), also known
as the proportionality finding, the trial court stated, consecutive sentences are “not
disproportionate to what you did in this matter.” (Tr. 95.) The trial court
emphasized that “there [were] multiple occasions where these acts took place and
multiple harm to the victim in this matter.” (Tr. 95.) The victim was 12 years old at
the time appellant committed the offenses.
Although the trial court did not explicitly find that consecutive
sentences were not “disproportionate to the seriousness of [appellant’s] conduct and
to the danger [appellant] poses to the public,” the trial court was not required to
recite the statutory language verbatim, and the trial court’s statements during the
sentencing hearing, when viewed in their entirety, clearly indicate that the trial court
considered proportionality with respect to both the seriousness of appellant’s
conduct and the danger appellant posed to the public. See State v. Hollis, 8th Dist.
Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 23; see also State v. McGowan, 8th Dist.
Cuyahoga No. 105806, 2018-Ohio-2930, ¶ 19-25 (the trial court’s failure to explicitly
make the proportionality finding did not preclude the imposition of consecutive
sentences where the trial court’s statements during the sentencing hearing, when
viewed in their entirety, indicated that the court considered proportionality both
with regard to the seriousness of defendant’s conduct and the danger he posed to
the public); State v. Morris, 2016-Ohio-7614, 73 N.E.3d 1010, ¶ 27-34 (8th Dist.)
(the proportionality finding could be discerned from the record); State v. Amey, 8th
Dist. Cuyahoga Nos. 103000 and 103001, 2016-Ohio-1121, ¶ 15-19 (the trial court’s
statement that consecutive sentences “would not be disproportionate” combined
with statements regarding defendant’s extensive criminal history and the trial
court’s statement that defendant had not “responded favorably to sanctions
previously imposed” satisfied proportionality finding); State v. Cooperwood, 8th
Dist. Cuyahoga Nos. 99309, 99310, and 99311, 2013-Ohio-3432, ¶ 40 (the trial
court’s statement that consecutive sentences “would not be disproportionate,” when
viewed “in its context,” constituted a proportionality finding that complied with R.C.
2929.14(C)(4)); State v. Blevins, 2017-Ohio-4444, 93 N.E.3d 246, ¶ 18-23 (8th Dist.)
(although the trial court only made a specific finding that consecutive sentences
were not disproportionate to the seriousness of defendant’s conduct, the trial court’s
statements on the record at sentencing, when viewed in their entirety, clearly
indicated that the court considered proportionality with regard to both the
seriousness of defendant’s conduct and the danger the defendant posed to the
public).
In the instant matter, like Amey, the trial court stated that appellant
“had not done well on probation with prior domestic violence cases, and the Court
sees absolutely no reason that [appellant] should be afforded an opportunity on
community control sanctions.” (Tr. 94.) As noted above, appellant does not
challenge the sufficiency or adequacy of the trial court’s proportionality finding, and
we decline to construct an argument on appellant’s behalf.
Regarding the third finding, the trial court determined that R.C.
2929.14(C)(4)(b) and (c) applied. The trial court stated,
the harm was so great or unusual a single sentence does not adequately
reflect the seriousness of your conduct.
***
Your criminal history shows that consecutive terms are needed to
protect the public as well.
(Tr. 95-96.)
Accordingly, the record reflects that the trial court made the requisite
findings during the sentencing hearing under R.C. 2929.14(C)(4) in imposing
consecutive sentences.
The trial court incorporated the first, second, and third consecutive
sentence finding under R.C. 2929.14(C)(4)(c) into its sentencing journal entry, as
required by Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. The trial
court’s March 16, 2020 sentencing entry provides, in relevant part,
[t]he court imposes prison terms consecutively finding that consecutive
service of the prison term is necessary to protect the public from future
crime or to punish defendant; that the consecutive sentences are not
disproportionate to the seriousness of defendant’s conduct and to the
danger defendant poses to the public; and that, defendant’s history of
criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by defendant.
Although the trial court found at the sentencing hearing that R.C.
2929.14(C)(4)(b) and (c) applied, the trial court only incorporated the R.C.
2929.14(C)(4)(c) finding into its sentencing journal entry.
Even where a trial court omits a required consecutive sentencing
finding from its sentencing journal entry, it is well established that the
trial court’s “inadvertent failure to incorporate the statutory findings in
the sentencing entry after properly making those findings at the
sentencing hearing does not render the sentence contrary to law;
rather, such a clerical mistake may be corrected by the court through a
nunc pro tunc entry to reflect what actually occurred in open court.”
State v. Wilkins, 8th Dist. Cuyahoga No. 109368, 2021-Ohio-311, ¶ 17, quoting
Bonnell at ¶ 30. In this case, the trial court’s failure to incorporate its finding under
R.C. 2929.14(C)(4)(b) into the sentencing journal entry can be corrected through a
nunc pro tunc sentencing entry on remand.
In challenging the trial court’s imposition of consecutive sentences,
appellant argues that the trial court’s consecutive sentence findings are not
supported by the record or the underlying facts. Appellant challenges the trial
court’s first and second findings under R.C. 2929.14(C)(4).
Specifically, appellant argues that “[a] concurrent term would have
adequately punished [him] and protected the community after considering the facts
of the case,” and that consecutive sentences are “clearly disproportionate to the
crimes committed[.]” Appellant’s brief at 4-5. In support of his argument that there
is no factual basis for imposing consecutive sentences, appellant emphasizes that he
was an alcoholic, he did not touch the victim’s vagina, he did not force the victim to
touch him, and he was “deeply remorseful” at sentencing. Appellant’s brief at 6.
Regarding the third finding, appellant appears to argue that R.C.
2929.14(C)(4)(b) was inapplicable because “the harm was not so great or unusual
that a single term would not adequately reflect the seriousness of the conduct.”
Appellant’s brief at 5. Appellant’s argument regarding the third requisite finding is
misplaced. As noted above, the trial court also found that R.C. 2929.14(C)(4)(c)
applied. The trial court is only required to make one finding under R.C.
2929.14(C)(4)(a)-(c) in order to impose consecutive sentences. Wilkins, 8th Dist.
Cuyahoga No. 109368, 2021-Ohio-311, at ¶ 16.
After reviewing the record, we cannot say that the record clearly and
convincingly does not support the trial court’s findings under R.C. 2929.14(C)(4).
The trial court considered the statements made by defense counsel, appellant, and
the state at sentencing. Defense counsel acknowledged at sentencing that
appellant’s record was “substantial[.]” (Tr. 86.)
The prosecutor emphasized that appellant was a parental figure to the
victim, and that appellant exploited this relationship in perpetrating the offenses.
The prosecutor stated that appellant threatened the victim that if she did not engage
in sexual activity with him, he would leave the home and no longer provide the
financial contributions to the household upon which the victim’s family relied.
(Tr. 89.) Appellant used his employment and income “as a weapon in order to
coerce [the victim] into engaging in sexual activity.” (Tr. 90.)
The prosecutor explained that allegations of sexual activity involving
appellant and the victim arose the year before appellant was arrested in 2019. When
the allegations initially arose, appellant used this financial leverage to get the victim
to recant. (Tr. 90.)
The prosecutor opined that appellant was a danger to his family and
the public based on his criminal history that included domestic violence. The victim
was removed from her mother’s custody following the September 2019 incident.
She receives psychiatric counseling to address the trauma she suffered as a result of
appellant’s conduct.
Finally, the prosecutor explained that threats had been issued on
appellant’s behalf by the Heartless Felons to members of the victim’s family. The
threats were specifically issued to the victim’s mother, grandparents, and cousins.
(Tr. 5-6, 93.) The record also reflects that threats were issued to a social worker in
the Department of Children and Family Services sex abuse unit, and the victim’s
mother’s therapist. (Tr. 48-49.)
The trial court confirmed that it reviewed appellant’s presentence
investigation report, the principles and purposes of felony sentencing under R.C.
2929.11, and the applicable seriousness and recidivism factors under R.C. 2929.12.
The trial court explained that it was “troubled by several aspects to this case.”
(Tr. 94.)
The trial court explained that appellant’s criminal history “indicates a
pattern of violence to family members.” (Tr. 94.) Appellant’s criminal history
included arrests, charges, or convictions for importuning, aggravated menacing,
theft, leaving the scene of an accident, disorderly conduct, criminal mischief,
criminal damaging, criminal menacing, assault, alcohol-related offenses, disorderly
conduct, and open container. The trial court acknowledged that appellant had three
prior cases involving domestic violence.
The trial court considered the harm that was caused by appellant’s
conduct, the way appellant conducted himself throughout the proceedings, and
whether consecutive sentences were appropriate. The trial court acknowledged that
appellant made ongoing threats to the victim and her mother. The trial court
emphasized that the victim’s mother, who was dependent on appellant’s income, did
not cooperate with the system.
For all of the foregoing reasons, we find that the record before this
court clearly and convincingly supports the trial court’s R.C. 2929.14(C)(4) findings.
Because the trial court made the requisite findings during the sentencing hearing
under R.C. 2929.14(C)(4), and the findings are clearly and convincingly supported
by the record, the trial court did not err in imposing consecutive sentences.
The matter is remanded to the trial court for the limited purpose of
issuing a nunc pro tunc sentencing journal entry incorporating all of the consecutive
sentence findings, including the finding under R.C. 2929.14(C)(4)(b), that the trial
court made at the sentencing hearing.
Appellant’s sole assignment of error is overruled.
Judgment affirmed; remanded.
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 the issuance of a nunc pro tunc journal entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
ANITA LASTER MAYS, P.J., and
EMANUELLA D. GROVES, J., CONCUR