State v. Cole

2018 Ohio 4646

• Court: Ohio Court of Appeals
• Decided: November 19, 2018
• Docket: 8-18-26
• Status: Published

Opinion

[Cite as State v. Cole, 2018-Ohio-4646.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-18-26

v.

MICHAEL W. COLE, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CR 17 12 0409

Judgment Affirmed and Cause Remanded

Date of Decision: November 19, 2018

APPEARANCES:

Eric J. Allen for Appellant

Alice Robinson-Bond for Appellee Case No. 8-18-06

PRESTON, J.

{¶1} Defendant-appellant, Michael W. Cole, Jr. (“Cole”), appeals the May

16, 2018 judgment entry of sentence of the Logan County Court of Common Pleas.

For the reasons that follow, we affirm the conviction and sentence of the trial court

and remand to the trial court so it can amend its sentencing entry via a nunc pro tunc

order to properly include the trial court’s consecutive-sentence findings.

{¶2} This case arises from a December 5, 2017 incident in which Cole

allegedly hit his live-in girlfriend, Kerri Emrick (“Emrick”), with a belt, grabbed

her by the neck, forced her to the ground, and hit the cell phone out of her hand

when she attempted to call the police. (Apr. 6, 2018 Tr. at 11-12). (See Doc. No.

29). When J.E., Emrick’s 13-year-old son, came to his mother’s aid, Cole allegedly

hit him as well. (Apr. 6, 2018 Tr. at 11-12). (See Doc. No. 29). After Cole was

arrested, he allegedly became aggressive and noncompliant with six separate law

enforcement officers culminating in officers deploying pepper spray on Cole and

placing him into a restraint chair. (Apr. 6, 2018 Tr. at 11-12). (See Doc. No. 29).

{¶3} On December 12, 2017, the Logan County Grand Jury indicted Cole on

six counts: Counts One and Two of domestic violence in violation of R.C.

2919.25(A), fourth-degree felonies; Count Three of disrupting public services in

violation of R.C. 2909.04(A)(1), a fourth-degree felony; Count Four of harassment

with a bodily substance in violation of R.C. 2921.38(A), a fifth-degree felony;

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Count Five of harassment with a bodily substance in violation of R.C. 2921.38(B),

a fifth-degree felony; and Count Six of assault in violation of R.C. 2903.13(A), a

fourth-degree felony. (Doc. No. 2). On December 15, 2017, Cole appeared for

arraignment and entered pleas of not guilty. (Doc. No. 8).

{¶4} On April 6, 2018, under a negotiated plea agreement, Cole withdrew

his pleas of not guilty and entered guilty pleas to Counts One and Four. (Doc. No.

39). In exchange, the State agreed to dismiss Counts Two, Three, Five, and Six.

(Id.). The trial court accepted Cole’s guilty pleas, found him guilty, and ordered a

presentence investigation. (Id.). The trial court also dismissed Counts Two, Three,

Five, and Six. (Id.). On April 17, 2018, the trial court filed its judgment entry of

conviction. (Id.).

{¶5} On May 15, 2018, the trial court sentenced Cole to 15 months in prison

on Count One and 9 months in prison on Count Four to be served consecutively for

an aggregate term of 24 months’ imprisonment. (Doc. No. 42). On May 16, 2018,

the trial court filed its judgment entry of sentence. (Id.).

{¶6} Cole filed his notice of appeal on May 31, 2018. (Doc. No. 50). He

raises one assignment of error.

Assignment of Error

The record in this matter does not support the imposition of consecutive sentences pursuant to state law R.C. 2929.14.

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{¶7} In his assignment of error, Cole argues that the trial court erred in

sentencing him to 24 months in prison. Specifically, Cole argues that the record

does not support the trial court imposing consecutive sentences because he “has

made significant attempts at remaining sober and * * * seek[ing] help for himself.”

(Appellant’s Brief at 3-4). Additionally, Cole argues that he was “regularly seeing

a psychiatrist and being consoled [sic] at Consolidated Care” and that he and Emrick

were working on “reintegrating” their family unit. (Id. at 4).

{¶8} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

‘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. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and

12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that ‘“which will produce

in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established.”’” Id., quoting Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio

St. 469 (1954), paragraph three of the syllabus.

{¶9} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently with

any other prison term, jail term, or sentence of imprisonment imposed by a court of

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this state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)

provides:

(4) * * * [T]he 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.

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(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)(2017) (current version at R.C. 2929.14(C)(2018)).

{¶10} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-

24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive

sentences are necessary to either protect the public or punish the offender; (2) the

sentences would not be disproportionate to the offense committed; and (3) one of

the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.

{¶11} The trial court must state the required findings at the sentencing

hearing when imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A

trial court “has no obligation to state reasons to support its findings” and 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.” Bonnell at ¶ 37.

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{¶12} Cole contends that the record does not support a consecutive sentence

of 24 months because he “has made significant attempts at remaining sober,” “was

regularly seeing a psychiatrist and being consoled [sic] at Consolidated Care,” and

“shows genuine remorse for his actions and seeks to change.” (Appellant’s Brief at

3-4). However, Cole’s arguments are meritless as the trial court made the necessary

findings under R.C. 2929.14(C)(4) at the sentencing hearing and the record supports

those findings.

{¶13} The trial court made the three statutorily required findings at the

sentencing hearing. Specifically, at the sentencing hearing, the trial court said:

The Court finds that consecutive sentences are appropriate, so. [sic]

Count I and Count IV will be served consecutive to one another.

These are necessary to punish you and to otherwise protect the public

from your potential future crimes. They’re not disproportionate to the

seriousness of your conduct, and as I have indicated repeatedly, you

were on community control at the time that this offense was

committed and a single prison term would simply not adequately

reflect the seriousness of your conduct. I further find that your

criminal history demonstrates that consecutive sentences are in fact

necessary to protect the public.

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(May 15, 2018 Tr. at 20). Therefore, at the sentencing hearing, the trial court found

that consecutive sentences are necessary to protect the public or punish the offender

and that consecutive sentences would not be disproportionate to the offense

committed, and it made findings relative to R.C. 2929.14(C)(4)(a) and (c).

{¶14} The trial court incorporated its findings into its sentencing entry as

follows:

The Court finds that consecutive sentences are necessary to protect

the public from future crime and/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. 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

(Doc. No 42). Thus, although the trial court made findings as to both R.C.

2929.14(C)(4)(a) and (c) at the sentencing hearing, the trial court only reproduced

its findings as to R.C. 2929.14(C)(4)(a) in its sentencing entry.

{¶15} With regard to R.C. 2929.14(C)(4)(a), the trial court found that Cole

committed the offenses while under supervision for domestic violence. At the

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sentencing hearing, Cole’s trial counsel stated “[Cole] had a probation violation out

of municipal court which stemmed from the same set of facts as this case, and in

that particular case he spent 90 days in jail.” (May 15, 2018 Tr. at 6). In addition,

the trial court reviewed the presentence investigation report (“PSI”) and confirmed

that Cole was under supervision for misdemeanor domestic violence when the

instant offenses were committed. (Id. at 12-13). (See PSI at 5). Before announcing

Cole’s sentence, the trial court again stated that the present offenses were committed

while Cole was under supervision for domestic violence. (May 15, 2018 Tr. at 15).

{¶16} However, the trial court’s finding that Cole was under community

control at the time he committed the subject offenses is not a valid basis to impose

consecutive sentences under R.C. 2929.14(C)(4)(a). The record supports that Cole

was under supervision for a misdemeanor, rather than for a felony, at the time he

committed the instant offenses. Because Cole was under supervision for a

misdemeanor only, he could not have been “under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code” as those sections of the

Revised Code apply to sanctions for felonies, not misdemeanors. See R.C.

2929.14(C)(4)(a), 2929.16, 2929.17, and 2929.18. See also State v. Steiner, 5th

Dist. Holmes No. 15CA17, 2016-Ohio-4648, ¶ 25, fn. 1. Furthermore, there is no

evidence in the record suggesting that Cole was awaiting trial or sentencing at the

time he committed the offenses or that he was under post-release control for a prior

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offense. See R.C. 2929.14(C)(4)(a). Therefore, the trial court could not rely on the

grounds set forth in R.C. 2929.14(C)(4)(a) to support Cole’s consecutive sentences.

See Steiner at ¶ 25, fn. 1 (concluding that R.C. 2929.14(C)(4)(a) was inapplicable

where Steiner was not awaiting trial or sentencing, was not on post-release control,

and was under sanction for a prior misdemeanor, rather than for a felony).

{¶17} Although the record does not support a finding under R.C.

2929.14(C)(4)(a), the trial court also made findings under R.C. 2929.14(C)(4)(c) at

the sentencing hearing supporting the imposition of consecutive sentences.

Specifically, during the sentencing hearing the trial court found that Cole’s

“criminal history demonstrates that consecutive sentences are in fact necessary to

protect the public.” (May 15, 2018 Tr. at 20). The record supports the trial court’s

conclusion under R.C. 2929.14(C)(4)(c).

{¶18} At the sentencing hearing, the trial court reviewed the PSI and Cole’s

criminal record going back to 1993 and noted that Cole consistently reoffended

when on post-release control, community control, or when subject to other criminal

sanctions. (May 15, 2018 Tr. at 11-13). (See PSI at 4-5). The trial court also found

that the instant case marks Cole’s sixth felony conviction, that he has prior

convictions for assault and domestic violence, and that Cole is “a danger to society.”

(May 15, 2018 Tr. at 16). (See PSI at 4-5). Finally, the trial court stated that it was

“particularly concerned about * * * the defendant’s prior criminal history” as

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detailed in the PSI. (May 15, 2018 Tr. at 17). (See PSI at 4-5). Thus, there is ample

evidence in the record to support the trial court’s finding under 2929.14(C)(4)(c)

that Cole’s criminal history demonstrates that consecutive sentences are necessary

to protect the public from future crime by Cole. See State v. Demeo, 11th Dist.

Ashtabula No. 2013-A-0067, 2014-Ohio-2012, ¶ 20 (noting that Demeo’s lengthy

criminal history and failure to observe community control sanctions supported

imposing consecutive sentences); State v. Chaney, 2d Dist. Clark No. 2015-CA-116,

2016-Ohio-5437, ¶ 16 (finding that the record supported consecutive sentences

when the defendant had a lengthy criminal history spanning three decades and did

not respond favorably to past sanctions); State v. Brown, 2d Dist. Champaign No.

2015-CA-21, 2016-Ohio-4573, ¶ 15, 17 (finding that the record supported

consecutive sentences when the defendant had not responded favorably to past

sanctions and had a juvenile history of prior drug offenses).

{¶19} Only one finding under R.C. 2929.14(C)(4)(a)-(c) is required to

impose consecutive sentences. State v. Jones, 8th Dist. Cuyahoga No. 104152,

2016-Ohio-8145, ¶ 8 (noting that the factors under R.C. 2929.14(C)(4)(a)-(c) “are

presented as three alternatives” and “[o]nly one need be supported by the record in

order to affirm”); State v. Robinson, 3d Dist. Hancock No. 5-16-13, 2017-Ohio-

2703, ¶ 14 (finding that the record supported the trial court’s imposition of

consecutive sentences where at least one of the R.C. 2929.14(C)(4)(a)-(c) factors

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was supported by the record); State v. Bell, 5th Dist. Muskingum No. CT2016-0049,

2017-Ohio-1531, ¶ 23-28 (finding that the record supported the trial court’s findings

under R.C. 2929.14(C)(4) and imposition of consecutive sentences where only one

of the R.C. 2929.14(C)(4)(a)-(c) factors was supported by the record); State v.

Brown, 7th Dist. Mahoning No. 16 MA 0161, 2018-Ohio-253, ¶ 53 (stating that

“[t]he trial court was only required to make one finding” under R.C.

2929.14(C)(4)(a)-(c)). Therefore, although the trial court’s findings under R.C.

2929.14(C)(4)(a) are not supported by the record, because its findings under R.C.

2929.14(C)(4)(c) are supported by the record and because these findings

independently support Cole’s consecutive sentences, the trial court complied with

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

{¶20} Additionally, the trial court found that the consecutive sentences are

necessary to protect the public or punish the offender and that consecutive sentences

would not be disproportionate to the offense committed. Thus, the trial court

satisfied the requirements of R.C. 2929.14(C)(4) at the sentencing hearing. See

Jones at ¶ 8; Robinson at ¶ 14; Brown, 2018-Ohio-253, at ¶ 53.

{¶21} Therefore, there is not clear and convincing evidence that Cole’s

sentences are unsupported by the record or that his sentences are otherwise contrary

to law. See Nienberg, 2017-Ohio-2920, at ¶ 23.

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{¶22} However, as noted above, the trial court did not incorporate its R.C.

2929.14(C)(4)(c) findings into its sentencing entry. Nevertheless, “[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.”

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, at ¶ 30.

{¶23} Here, the trial court did make the appropriate statutory findings under

R.C. 2929.14(C)(4) at the sentencing hearing, but failed to include those findings in

its sentencing entry. Therefore, the trial court may satisfy Bonnell by amending its

sentencing entry via a nunc pro tunc order that includes the omitted finding under

R.C. 2929.14(C)(4)(c). See State v. Mayberry, 2d Dist. Montgomery No. 26025,

2014-Ohio-4706, ¶ 34.

{¶24} Cole’s assignment of error is overruled.

{¶25} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the conviction and sentence of the trial

court and remand so the trial court can amend its sentencing entry via a nunc pro

tunc order to include the trial court’s consecutive-sentence findings.

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

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