State v. Banks

2023 Ohio 4655

Opinion

[Cite as State v. Banks, 2023-Ohio-4655.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff- Appellee, : No. 112735 v. :

WILLIE BANKS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED RELEASED AND JOURNALIZED: December 21, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-674075-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Alan Dowling, Assistant Prosecuting Attorney, for appellee.

Allison S. Breneman, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant Willie Banks appeals from a judgment of the trial

court that imposed consecutive prison terms for his offenses of felonious assault, abduction, theft, and menacing by stalking. On appeal, he argues that the trial court

erred in imposing consecutive sentences for his offenses. Our review of the record

indicates the trial court failed to make all the findings mandated by

R.C. 2929.14(C)(2) before it imposed consecutive sentences. Accordingly, we vacate

the trial court’s judgment and remand the matter to the trial court for the limited

purposes of considering whether consecutive sentences are appropriate under R.C.

2929.14(C)(2) and to make all the required findings.

Background

Banks was indicted for felonious assault, abduction, theft, cruelty to

animals, and menacing by stalking; the first two offenses were accompanied with a

one-year firearm specification. These offenses stemmed from an incident where

Banks beat his girlfriend Nicole Grady in her house, stopped her from leaving, stole

her credit cards, threatened her, and also terrorized her dog.

The trial court set the matter for a jury trial but after the voir dire of the

jury was completed, Banks pled guilty under a plea agreement in exchange for

reduced charges and deletion of the gun specifications. Under the agreement, he

pled guilty to aggravated assault, a fourth-degree felony; attempted abduction, a

fourth-degree felony; theft, a fifth-degree felony; attempted cruelty to animals, a

first-degree misdemeanor; and menacing by stalking, a fourth-degree felony.

At sentencing, the trial court permitted Grady and Banks to each offer

an account of the incident. According to Grady, on the night of the incident, the two

got into an argument in her bedroom and she asked Banks to leave her house. The conflict escalated, and instead of leaving, Banks struck her. At one point, he

punched her in her ribs when she was lying down on the bed. Her dog was trying to

protect her, and Banks grabbed a stick and tried to hit the dog. Grady’s wrist was

injured when she tried to protect the dog from the stick.

Grady stated that Banks hit her so hard that she had difficulty

breathing. When she tried to put on her clothes to leave the house, he snatched the

clothes from her hand and prevented her from leaving, threatening to “bust [her]

motherf***ing face.” When she tried to leave in the morning, Banks snatched her

purse from her. She managed to get into her vehicle and call 911.

Banks offered an entirely different account of the events. Grady was

moving items from downstairs to upstairs all night long while getting high. She

came into the bedroom at 4:00 a.m. and asked him to call his friends for drugs. He

refused, and they got into an argument. According to Banks, Grady was abusing

drugs and unable to go to work the next day, so she concocted the story of the assault

as an excuse for her absence from work. Banks also claimed he hit the dog with a

stick because the dog was trying to bite Grady, but the stick hit her hand instead.

Banks had ten prior domestic violence convictions involving different

victims. He explained that he pled guilty to the charges in those cases so he could

move on with his life. Banks’s counsel emphasized Banks was an asset to the

community; he owned a successful body shop and employed five people from the

neighborhood. The prosecutor noted that Grady suffered a broken rib and that a

SANE nurse who examined Grady noticed that Banks called Grady eight times during the examination; furthermore, the photos taken as part of the examination

showed bruising all over Grady’s body, including scratches around her neck.

The trial court imposed 18 months each on Banks’s offenses of

aggravated assault, abduction, and menacing by stalking, and 12 months on the theft

offense, to be served consecutively. It also imposed 180 days on his offense of

attempted cruelty to animals, to be served concurrently to the other counts. On

appeal, Banks raises a single assignment of error claiming the trial court erred in

imposing consecutive sentences.

Standard of Review for Consecutive Sentences

Pursuant to R.C. 2953.08(G)(2), we may increase, reduce, or otherwise

modify a sentence or vacate a sentence and remand for resentencing if we “clearly

and convincingly” find that the record does not support the sentencing court’s

findings under R.C. 2929.14(C)(4), or that the sentence is otherwise contrary to law.

“In order to impose consecutive terms of imprisonment, a trial court

is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing

hearing and incorporate its findings into its sentencing entry,” and a failure to do so

is contrary to law. 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 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. “[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.

The consecutive sentences statute, R.C. 2929.14(C)(4), provides that

the trial court can impose consecutive sentences if it finds consecutive sentences are

“necessary to protect the public from future crime or to punish the offender, that

such sentences would not be disproportionate to the seriousness of the conduct and

to the danger the offender poses to the public,” and 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 post-release 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.

R.C. 2929.14(C)(4).

Analysis

Banks claims that the trial court erred by ordering consecutive

sentences in that it failed to sufficiently consider the mitigating factor regarding his

contribution to the local community. The claim lacks merit because the only

requirement on the trial court for an imposition of consecutive sentences is that the trial court must make the necessary findings pursuant to R.C. 2929.14(C)(4) and

that these findings are supported by the record.

While we find Banks’s argument to lack merit, our review of the

record indicates that the trial court failed to make all the findings mandated by

R.C. 2929.14(C)(4). The transcript reflects that the trial court made the following

findings under R.C. 2929.14(C)(4) for its imposition of consecutive sentences on

Banks:

The Court finds that consecutive sentences are necessary to protect the public from future crimes. The Court finds that consecutive sentences are necessary to punish the offender. The Court finds that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct. And the Court finds that the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

The trial court made the finding that consecutive sentences were

necessary to protect the public from future crime or to punish the offender. It also

made the finding under R.C. 2929.14(C)(4)(c) that Banks’s history of criminal

conduct demonstrates that consecutive sentences are necessary to protect the public

from future crime by him. However, the court’s proportionality finding is deficient.

While a word-for-word recitation of the language of the statute is not necessary, the

proportionality finding is stated as a conjunctive phrase and the trial court is

required to consider the proportionality of the sentence regarding both the

seriousness of the offender’s conduct and the danger the offender poses to the

public. State v. Spencer, 8th Dist. Cuyahoga No. 101131, 2014-Ohio-5430, ¶ 8. The

trial court is not permitted to impose consecutive sentences where it failed to make the mandatory finding that “consecutive sentences were not disproportionate to the

seriousness of the offender’s conduct and were not disproportionate to the danger

the offender posed to the public.” State v. Graves, 8th Dist. Cuyahoga No. 98559,

2013-Ohio-2197, citing State v. Lebron, 2012-Ohio-4156, 976 N.E.2d 945, ¶ 15 (8th

Dist.). The trial court here failed to find that consecutive sentences are not

disproportionate to the danger Banks poses to the public. Its journal entry similarly

failed to include this finding.1

Because we are unable to discern that the trial court engaged in the

correct analysis, we must vacate Banks’s sentence and remand the matter to the trial

court for the limited purpose of considering whether consecutive sentences are

appropriate under R.C. 2929.14(C)(4) and to make the necessary findings. State v.

Tolbert, 2023-Ohio-532, 209 N.E.3d 170, ¶ 10 (8th Dist.), citing State v. Vargas, 8th

Dist. Cuyahoga No. 101796, 2015-Ohio-2856, ¶ 15, citing State v. Nia, 2014-Ohio-

2527, 15 N.E.3d 892, ¶ 28 (8th Dist.). If the trial court finds consecutive sentences

1 The state, citing State v. Ayers, 10th Dist. Franklin No. 13AP-371, 2014-Ohio-276, claims

that, because Banks did not object to his consecutive sentences at trial, we review the issue for plain error and therefore Banks must show that, but for the error, the outcome would have been different. Ayers does not support the state’s claim. In that case, the trial court did not make the necessary consecutive findings. The Tenth District explained that, when the trial court failed to make the statutory findings, the sentence is “‘contrary to law and constitutes plain error.’” (Quotation omitted.) Id. at ¶ 15. The Tenth District specifically rejected the state’s contention that because there was no manifest injustice, the trial court’s sentencing did not rise to the level of plain error. The Tenth District explained that “a failure to precisely comply with R.C. 2929.14 is plain error because the sentence is contrary to law.” Id. at ¶ 16. Ayers does not require a different analysis or outcome in the instant case. In any event, we are bound to follow the standard of review set forth in Bonnell until further guidance from the Supreme Court of Ohio. appropriate and makes the necessary findings, it is also required to incorporate the

findings into the sentencing entry . Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, at ¶ 37.

Sentence vacated, and case remanded to the lower court for further

proceedings consistent with this opinion.

It is ordered that appellant recover from appellee 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.

__________________________________ MICHELLE J. SHEEHAN, JUDGE

EILEEN T. GALLAGHER, J., CONCURS; FRANK DANIEL CELEBREZZE, III, P.J., DISSENTS (WITH SEPARATE OPINION ATTACHED)

FRANK DANIEL CELEBREZZE, III, P.J., DISSENTING:

I respectfully dissent from my colleagues in the majority. My dissent

is merely a divergence of opinion, not a disagreement on the applicable law. I would

find that the record does not clearly and convincingly establish that the trial court

failed to consider the mandatory R.C. 2929.14(C)(4) factors pursuant to Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37. The majority contends that they were unable to discern whether the

trial court considered the proportionality finding as to the danger the offender poses

to the public. Even though the court does not use the exact language of the statute,

I would find that the trial court made this finding based on its statements and

questioning during the sentencing hearing. To reiterate the relevant law, a trial

court is not required to state 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 id.

The trial court questioned the victim, who had been in a relationship

with Banks for two years prior to the incident. The victim indicated that she was

“tired of looking over [her] shoulder every day” and, when questioned further about

this statement, indicated that she was constantly “wondering if he’ll pop up

somewhere because he always told me that there’s nowhere I can hide from him if

he want me” and that she is “tired of being fearful[.]” (Tr. 253, 261.) The victim

noted that numerous former victims of Banks had reached out to her and that she

was “damaged” from his behavior. (Tr. 254.) Throughout their relationship, Banks

was constantly threatening her, throwing glasses around the home, and had injured

her prior to this incident. Related to this particular incident, she stated that she

could not breathe after she was punched in the ribs and Banks prevented her from

leaving. Even when the victim was receiving medical treatment for her broken rib,

the SANE nurse noted that Banks telephoned her a number of times. The trial court questioned Banks regarding his ten prior domestic

violence convictions, noting that Banks also had prior felonious assault and assault

charges. Banks refused to take accountability for his prior convictions, stating that

he took those pleas “so I can get the case over and move on with my life” (Tr. 262.)

and brushing off the questions. The trial court was unpersuaded by Banks’s

explanation, asking Banks’s counsel, “How is he an asset to the public when he has

10 prior convictions for domestic violence?” (Tr. 266.)

In my view, the record, when viewed in its entirety, is sufficient to

demonstrate that the trial court employed the proper analysis and considered the

proportionality of the sentence as to the danger Banks poses to the public. See, e.g.

State v. Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 23 (“[T]he trial

court’s statements during the sentencing hearing, when viewed in their entirety,

clearly indicate that the trial court considered proportionality[.]”). This is

particularly so because the victim’s statements indicate that several other women

reached out to her to detail similar incidents, and Banks himself conceded that his

prior convictions were borne from past relationships. The victim expressed that she

would be fearful unless Banks was incarcerated, and we note that Banks’s

harassment continued even while the victim received treatment.

Despite my belief that the trial court sufficiently considered the

proportionality finding, it is undisputed that the trial court failed to incorporate this

finding into its sentencing entry. The trial court did journalize that it “considered

all required factors of the law,” but this is insufficient pursuant to Bonnell. Because I would find that the trial court engaged in the correct analysis and considered the

proportionality of the sentence to the danger Banks poses to the public, I would

affirm the consecutive sentences but remand for the issuance of a nunc pro tunc

reflecting the correct statutory language in accordance with Bonnell. See, e.g., State

v. Scott, 8th Dist. Cuyahoga No. 111212, 2022-Ohio-3549, ¶ 25-26.