State v. Black

2020 Ohio 188

• Court: Ohio Court of Appeals
• Decided: January 23, 2020
• Docket: 108335
• Status: Published

Opinion

[Cite as State v. Black, 2020-Ohio-188.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108335 v. :

ARNOLD BLACK, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 23, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-618138-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kerry A. Sowul, Assistant Prosecuting Attorney, for appellee.

Walter H. Edwards, Jr., for appellant.

SEAN C. GALLAGHER, P.J.:

Arnold Black, Jr., appeals his three convictions for rape, which

include a firearm specification, and the aggregate 13-year term of imprisonment that

was consecutively imposed to a 26-year term of imprisonment Black was serving in

an unrelated matter. We affirm. The parties have not provided a recitation of the facts underlying the

rape convictions. We accept that as a concession that the facts of the criminal

conduct are irrelevant to this appeal. App.R. 16(A)(6).

In the first assignment of error, Black claims his guilty plea was not

made knowingly, intelligently, and voluntarily because the trial court failed to

substantially comply with the requirement to advise Black of the sex offender

classification requirements that are part of the penalty for his offenses.

“When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525,

527, 1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining

whether a plea was knowing, intelligent, and voluntary within the meaning of

Crim.R. 11 is substantial compliance for nonconstitutional issues and strict

compliance for constitutional issues. State v. Nero, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163

(1977). “Substantial compliance means that under the totality of the circumstances

the defendant subjectively understands the implications of his plea and the rights he

is waiving.” Nero.

In addition, when challenging his guilty plea based on the trial court’s

lack of substantial compliance, a defendant must also show a prejudicial effect —

that the plea would not have been otherwise entered but for the error. State v. Clark,

119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing Nero at 108. Black cannot demonstrate that the plea would not have been entered

even if the trial court failed to substantially comply with the nonconstitutional

advisements. The trial court discussed the implications of pleading guilty to the rape

charges, including a brief discussion with respect to the sex offender classification

and registration requirements that would be imposed following the conviction. At

that time, Black’s counsel indicated that Black was already subject to the same Tier

III registration requirements from another case and that the current registration

requirements stemming from the guilty plea were inconsequential. According to

Black’s counsel, the new requirements essentially “merged” with the existing

lifetime registration requirements and would not independently affect Black’s

reporting requirements moving forward. As a result, Black cannot demonstrate, let

alone has he argued, that but for the lack of substantial compliance in informing him

of the sex offender registration requirements, he would not have entered the guilty

plea to the three rape charges.

Even if we assumed, for the sake of discussion, that the trial court’s

advisement regarding the registration requirements was somehow deficient, it is

abundantly evident that Black was not prejudiced thereby. Black was already

subjected to the same reporting requirements, which were not expanded by the

newest conviction. It cannot be credibly argued that had Black been advised of the

full extent of the reporting requirements stemming from his newest crimes, he

would have forgone pleading guilty to the three rape charges with the remainder being nolled, which reduced his sentencing exposure from 144 to 33 years in prison.

The first assignment of error is overruled.

In the second assignment of error, Black claims that the record does

not support the consecutive sentencing finding that Black committed the newest

crimes while awaiting trial or sentencing or under community control or postrelease

control sanctions.

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. 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. 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 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.

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

additionally (3) that (a) the offender committed the offense while awaiting trial or

sentencing, under community control monitoring, or under postrelease control for

a prior offense; (b) at least two 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.

We need not extensively consider Black’s argument that one of the

alternative findings under R.C. 2929.14(C)(4)(a) is not supported by the record. In

this case, the trial court also found that

at least two of the multiple offenses were committed in this case as part of one or more courses of conduct, and the harm caused by said 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 defendant’s conduct.

R.C. 2929.14(C)(4)(b). The legislature authorized the trial court to impose

consecutive sentences if only one of three findings under R.C. 2929.14(C)(4)(a)-(c)

is made. State v. Nave, 8th Dist. Cuyahoga No. 107032, 2019-Ohio-348, ¶ 7. Black’s

claim, of the lack of evidence that he was not awaiting trial or under supervision at

the time he committed the current crimes as a basis to demonstrate the

inappropriateness of the consecutive sentences, is without merit. In this situation,

the legislature authorized the imposition of consecutive sentences if any of the

alternative findings is supported by the record under R.C. 2929.14(C)(4)(b) or (c). Id. Even if we agreed with Black that the record does not clearly and convincingly

support the finding under R.C. 2929.14(C)(4)(a), the trial court’s additional finding

under subdivision (C)(4)(b) satisfied the consecutive sentencing requirements. In

light of the fact that Black has not challenged the factual underpinnings of the

alternative finding the trial court made in this case, we cannot find error in the

imposition of consecutive sentences. App.R. 16(A)(7). The second assignment of

error is overruled.

In the third and final assignment of error, Black claims that the trial

court failed to consider the principles of felony sentencing under R.C. 2929.11 and

the factors under R.C. 2929.12, and as a result, his sentence is contrary to law. Black

is mistaken.

When reviewing felony sentences, appellate courts apply the standard

of review set forth in R.C. 2953.08(G)(2). Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231. R.C. 2953.08(G)(2) provides that an appellate court may

vacate and remand a sentence, if the court clearly and convincingly finds that either

the record does not support certain specified findings or the sentence is otherwise

“contrary to law.”

At the sentencing hearing and again in the final entry of conviction,

the trial court expressly considered all that is required by law. Id., see also State v.

Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 243, citing State v.

Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 14 (trial court fulfills its

obligation to consider the sentencing factors by expressly indicating such in the record). There is no error. The record unambiguously demonstrates that the trial

court considered the principles of felony sentencing and the sentencing factors

applicable in Black’s case. State v. Taylor, 8th Dist. Cuyahoga No. 107881, 2019-

Ohio-3367, ¶ 11.

We note, however, that Black does not actually appear to be

challenging the trial court’s consideration of the required factors and principles, but

instead he appears to disagree with the trial court’s weighing of the sentencing

factors. Importantly, the trial court imposed five-year terms on all counts, only two

of which were imposed consecutively and, in addition, imposed the three-year term

on the firearm specification consecutive to the ten-year, base aggregate term.

The entirety of Black’s argument on this point is as follows:

Appellant certainly has a criminal history, but he has also spent the entirety of his adult life incarcerated. Tr. p. 138. Appellant has experienced some issues during his incarceration, but he has not committed any sexual offenses and has only been in three fights over the course of approximately ten years. Tr. p. 141. All of the offenses in Appellant’s 2008 case and the current case occurred within a four- month span. Tr. p. 149. The court noted that had it sentenced Appellant for all of the cases at one time, it would have imposed a sentence of approximately twenty-six years total. Id. Prior to this matter, Appellant was scheduled to be released in 2034. Tr. p. 101. Now, despite the trial court’s contention that twenty-six years was an appropriate aggregate sentence for this case and Appellant’s prior case, he will be incarcerated until 2047.

It appears that Black is challenging the aggregate length of the consecutive sentences

and not the individual sentences imposed on each felony count in this case. Having

already concluded that there is no error in imposing the aggregate 13-year term of

imprisonment in this case, consecutive to the aggregate 26-year term of imprisonment that Black is already serving in an unrelated case, we need not

address this apparent claim any further.

In addition, the mere fact that Black disagrees with the trial court’s

decision based on its independent consideration of the sentencing factors is not a

basis for this court to reverse the lower-range sentences imposed on each individual

felony. In Taylor, 8th Dist. Cuyahoga No. 107881, 2019-Ohio-3367, this type of

argument was thoroughly addressed and rejected. As the court succinctly framed

the issue,

In an effort to challenge the adequacy of the trial court’s statutory considerations, [appellant] is merely asking this court to substitute our judgment for that of the trial court, which, as stated, appellate courts are not permitted to do. Moreover, by asking this court to view the seriousness and scope of his conduct in light of the relevant mitigating factors, [appellant] is encouraging this court to independently weigh the sentencing factors, which appellate courts are also not permitted to do.

(Citations omitted.) Id. at ¶ 17. The trial court in this case considered the factors

Black highlights in this appeal. That is all that is required by law. Id. We are unable

to conclude by clear and convincing evidence that the record does not support the

imposition of the five-year terms of imprisonment on each of the first-degree

felonies to which Black pleaded guilty.

The third assignment of error is overruled.

Black’s convictions are 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.

_____ SEAN C. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and LARRY A. JONES, SR., J., CONCUR