State v. Carswell

2021 Ohio 2839

• Court: Ohio Court of Appeals
• Decided: August 19, 2021
• Docket: 110033
• Status: Published

Opinion

[Cite as State v. Carswell, 2021-Ohio-2839.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110033 v. :

ANDRE CARSWELL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: August 19, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-647567-A and CR-20-650723-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Megan Helton, Assistant Prosecuting Attorney, for appellee.

Erin E. Hanson, for appellant.

ANITA LASTER MAYS, J.:

Defendant-appellant Andre Carswell (“Carswell”) appeals his prison

sentence, and asks this court to vacate his sentence and remand to the trial court for

resentencing. We affirm Carswell’s prison sentence, and remand to the trial court for the limited purpose to issue a nunc pro tunc entry incorporating its findings for

the consecutive sentences into its journal entries.

While on postrelease control in Cuyahoga C.P. Nos. CR-17-614742-A

and CR-17-616317-A, Carswell was indicted in Cuyahoga C.P. Nos. CR-20-647567-

A and CR-20-650723-A, and pleaded guilty in both. In the first case, Carswell

pleaded guilty to one count of drug possession, a fifth-degree felony, in violation of

R.C. 2925.11(A), and in the second case, Carswell pleaded guilty to one count of

domestic violence, a fourth-degree felony, in violation of R.C. 2919.25(A). The trial

court sentenced Carswell to 12 months’ imprisonment for drug possession and 18

months’ imprisonment for domestic violence. The trial court ordered that the

sentences be served consecutive to each other for a total of 30 months’

imprisonment. Because Carswell was under postrelease control for a previous case,

his probation was terminated and he was sentence to 12-months’ imprisonment to

run consecutive to his current cases.1

I. Facts and Procedural History

On January 7, 2020, Carswell was involved in a traffic stop where he

was pulled over by police officers for traveling at a high rate of speed. The officers

observed several rocks of crack cocaine in the vehicle, and Carswell was arrested and

charged with drug possession. While out on bond for the drug possession case,

Carswell was arrested on May 17, 2020, for domestic violence. While driving,

1 Probation cases Cuyahoga C.P. Nos. CR-17-614742-A and CR-17-616317-A are not the subject of this appeal. Carswell was involved in a verbal altercation with the victim, who was three months

pregnant, and started punching her several times in the face. Witnesses to the

physical altercation called 911 and described Carswell beating up the victim while

her head was pinned down in the seat. Another 911 caller feared that Carswell was

going to kill the victim during the severe beating.

Carswell was arrested, and while in jail, he made several recorded

phone calls to the victim. During these phone calls, Carswell told the victim she

should have lied to the police, and stated that he was going to beat her unless she

gets him out of jail by getting the protection order against him lifted. Carswell also

gave the victim two different versions of the domestic violence offense that the

victim could tell the prosecutor’s office to explain her injuries.

On August 13, 2020, Carswell pleaded guilty in both cases, and the

trial court sentenced him to the maximum sentence on each case and ran the

sentences consecutively. Carswell filed this appeal and assigned two errors for our

review:

I. The trial court’s imposition of maximum sentences was contrary to law; and,

II. The trial court erred by imposing consecutive sentences.

II. Maximum Sentences

A. Standard of Review

We review felony sentences in accordance to R.C. 2953.08(G)(2),

which states that “an appellate court may vacate or modify a felony sentence on appeal 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,

59 N.E.3d 1231, ¶ 1, 21.

A sentence is not clearly and convincingly contrary to law “where the

trial court considers the purposes and principles of sentencing under R.C. 2929.11

as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly

applies post-release control, and sentences a defendant within the permissible

statutory range.” State v. Thompson, 8th Dist. Cuyahoga No. 105785, 2018-Ohio-

1393, ¶ 7, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525,

¶ 10.

“The record must indicate that the trial court considered all relevant

factors required by R.C. 2929.11 and 2929.12, but the trial court has no obligation to

state reasons to support its findings.” State v. Evans, 8th Dist. Cuyahoga

No. 109619, 2021-Ohio-1411, ¶ 13, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, syllabus.

B. Law and Analysis

Carswell argues that the trial court erred in sentencing him to the

maximum sentence in the drug possession case. Specifically, Carswell contends that

the trial court did not make any findings regarding the seriousness of his conduct,

nor did the trial court find that the 12-month sentence is consistent with sentences

imposed for similar crimes by similar offenders. R.C. 2929.11(A) states:

A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.

“A sentence is contrary to law if * * * the trial court fails to consider

the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the

sentencing factors set forth in R.C. 2929.12.” State v. Taylor, 8th Dist. Cuyahoga

No. 107881, 2019-Ohio-3367, ¶ 11, citing State v. Pawlak, 8th Dist. Cuyahoga

No. 103444, 2016-Ohio-5926, ¶ 58. “R.C. 2929.11 and 2929.12 are not fact-finding

statutes.” Id.

R.C. 2929.12 presents an exhaustive list of sentencing factors that the

trial court must consider. The trial court must consider the factors “relating to the

seriousness of the conduct” of the offender, the factors “relating to the likelihood of

the offender’s recidivism,” and the factors “pertaining to the offender’s service in the

armed forces of the United States.” R.C. 2929.12(A). “The sentencing court shall

consider all of the [factors] that apply regarding the offender, the offense, or the

victim, and any other relevant factors, as indicating that the offender’s conduct is

more serious than conduct normally constituting the offense.” R.C. 2929.12(B).

“The sentencing court shall consider all of the [factors] that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that

the offender’s conduct is less serious than conduct normally constituting the

offense.” R.C. 2929.12(C). “The sentencing court shall consider all of the [factors]

that apply regarding the offender, and any other relevant factors, as factors

indicating that the offender is likely to commit future crimes” R.C. 2929.12(D).

“Therefore, although the trial court must consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors

listed in R.C. 2929.12, the court is not required to make findings or give reasons for

imposing more than the minimum sentence.” Id. at ¶ 11, citing State v. Pavlina, 8th

Dist. Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 15. “A trial court’s general statement

that it considered the required statutory factors, without more, is sufficient to fulfill

its obligations under the sentencing statutes.” Taylor at ¶ 11, citing State v. Wright,

8th Dist. Cuyahoga No. 95096, 2011-Ohio-733, ¶ 4. “And because courts have full

discretion to impose sentences within the statutory range, a sentence imposed

within the statutory range is ‘presumptively valid’ if the court considered the

applicable sentencing factors.” Id., citing State v. Collier, 8th Dist. Cuyahoga

No. 95572, 2011-Ohio-2791, ¶ 15.

At sentencing, the trial court stated, “[t]he Court has considered the

seriousness and recidivism factors and the principles and purpose of our sentencing

statutes.” (Tr. 27.) In its journal entry, the trial court stated, “The court considered

all required factors of the law. The court finds that prison is consistent with the

purpose of R.C. 2929.11.” Journal entry No. 114496535 (Sept. 17, 2020). Additionally, Carswell was sentenced to 12 months’ imprisonment for

a fifth-degree felony. “For a felony of the fifth degree, the prison term shall be a

definite term of six, seven, eight, nine, ten, eleven, or twelve months.”

R.C. 2929.14(A)(5). Carswell was also sentenced to 18 months for a fourth-degree

felony. “For a felony of the fourth degree, the prison term shall be a definite term of

six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,

seventeen, or eighteen months.” R.C. 2929.14(A)(4). The trial court imposed a

sentence within the statutory range, properly applied postrelease control, and stated

that it considered all of the applicable sentencing factors. Because the trial court is

not required to place its findings on the record, we determine that the trial court did

not err in sentencing Carswell to the maximum sentence.

Carswell’s first assignment of error is overruled.

III. Consecutive Sentences

“An appellate court must conduct a meaningful review of the trial

court’s sentencing decision.” State v. McHugh, 8th Dist. Cuyahoga No. 108372,

2020-Ohio-1024, ¶ 11.

R.C. 2953.08(G)(2) provides that appellate courts “may increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the sentencing court for resentencing” if the reviewing court “clearly and convincingly” finds that (a) “the record does not support the sentencing court’s findings under [R.C. 2929.14(C)(4)],” or that (b) “the sentence is otherwise contrary to law.” State v. Williams, 8th Dist. Cuyahoga No. 108904, 2020-Ohio-1622, ¶ 17.

In Carswell’s second assignment of error, he argues that the trial court

erred by imposing consecutive sentences. Carswell contends that the trial court

failed to make the necessary statutory findings at Carswell’s sentencing hearing and

incorporate them into the journal entry.

R.C. 2929.14(C)(4) states:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and 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 if the court also finds any 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.

(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. “‘In Ohio, sentences are presumed to run concurrent to one another

unless the trial court makes the required findings under R.C. 2929.14(C)(4).’”

Williams at ¶ 39, quoting State v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-

Ohio-4070, ¶ 28. “The failure to make the above findings renders the imposition of

consecutive sentences contrary to law. Id. at ¶ 40, citing Gohagan at ¶ 29.

R.C. 2929.14(C)(4).” However, the trial court does not need to state the statutory

requirements verbatim. See Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, at ¶ 29. “[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 Carswell’s sentencing hearing, the trial court stated,

I find your criminal history shows that consecutive terms are needed to protect the public. I find the total sentence of 30 months is not disproportionate to the amount of harm in this case.

The victim’s face was bloody and beaten and then there were harassing calls made from the jail demanding her assistance and changing her story.

(Tr. 31.)

The trial court also found that Carswell committed these crimes

“while on post-release control on Case 614742 and 616317.” (Tr. 27.) Additionally,

the trial court determined 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 stated, I’ve tallied up the number of prior cases in Cuyahoga County Common Pleas Court, and these are his 29th and 30[th] cases. Just do a little quick math, we’ve spent probably somewhere between 15- and $20,000 just on assigned counsel fees over the years for Mr. Carswell let alone all of the ancillary costs to the system of justice, the police officers, medical expenses due to violence. * * *

Now, violence to a victim, numerous histories of domestic violence, a criminal history of 30 years, several chances on community control, which almost every one resulted in regret by the judge granting it and the imposition eventually of a prison term, the commission of these two acts while on post-release control, the commission of the domestic violence after he was out on bond for the drug possession leads me and any other human being with a small, barely functioning brain to conclude that Mr. Carswell should not be eligible to walk free among civilized society, frankly, ever again.

Mr. Carswell, you are — appear to be pathologically incapable of living peaceably in a law-abiding manner amongst the community.

(Tr. 28-30.)

Based upon our meaningful review of the trial court’s sentencing

judgment, we clearly and convincingly find that the record supports the trial court’s

findings under R.C. 2929.14(C)(4). However, the trial court failed to incorporate its

consecutive-sentence findings in the journal entries. The state acknowledges and

concedes this error as well.

A 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. See State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15 (where notification of postrelease control was accurately given at the sentencing hearing, an inadvertent failure to incorporate that notice into the sentence may be corrected by a nunc pro tunc entry without a new sentencing hearing). Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30.

After thoroughly reviewing the record, we find that the trial court did

not err when it imposed consecutive sentences upon Carswell. The trial court made

the required findings for the imposition of consecutive sentences and the court’s

findings are supported by the record. However, we remand the matter for the sole

purpose of the trial court issuing a nunc pro tunc entry incorporating its findings for

consecutive sentences into its sentencing journal entry.

Carswell’s second assignment of error is overruled.

Judgment affirmed. This case is remanded for the limited purpose of

having the trial court issue a nunc pro tunc entry incorporating its consecutive-

sentence findings into its sentencing journal entry.

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.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

_________________________________ ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR