State v. Francis

2024 Ohio 1472

• Court: Ohio Court of Appeals
• Decided: April 18, 2024
• Docket: 113012
• Status: Published

Opinion

[Cite as State v. Francis, 2024-Ohio-1472.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 113012 v. :

RAYMOND KIRK FRANCIS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 18, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-673953-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Lindsay Patton, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant.

MICHAEL JOHN RYAN, J.:

In this appeal, defendant-appellant Raymond Francis challenges his

sentence to a minimum of 22 years and a maximum of 27.5 years, which was

rendered after he knowingly, voluntarily, and intelligently pled guilty to involuntary manslaughter, failure to comply with the order or signal of a police officer, and grand

theft. After a thorough review of the facts and pertinent law, we affirm.

The record demonstrates that in June 2022, Francis fled from a

corrections facility and stole a vehicle. On August 26, 2022, Francis was “joyriding”

with a friend in the stolen vehicle; Francis was the driver. An Ohio State patrol

trooper, who was working in Brook Park, Ohio, conducted a random license plate

check on the vehicle and learned that it was stolen. The trooper initiated a traffic

stop. Francis pulled over, and the passenger exited the vehicle. Francis said that he

did not want to go back to jail and then fled in the vehicle, driving at a high rate of

speed.

The trooper decided not to engage in a high-speed pursuit of Francis.

Instead, the trooper communicated with a police helicopter, who informed him of

the path Francis was travelling. Air support informed the trooper that Francis was

driving recklessly and had narrowly missed hitting several people. The trooper

followed the path of Francis’s travel as relayed to him by air support and ultimately

arrived at a location on Trowbridge Avenue in Cleveland, where Francis had struck

a vehicle driven by the victim in this case, 28-year-old Annelise Endres. First

responders on the scene administered life-saving aid to Endres, but she had

sustained extensive injuries and ultimately died as a result of them. It was

estimated that Francis was driving at a speed between 70 m.p.h. to 80 m.p.h. at the

time of impact with Endres’s vehicle. Francis’s conduct in this case constituted violations of the terms of his

community-control sanctions in five other cases.1

It was on this record that the trial court imposed a prison sentence of

15 years six months to 21 years, which included consecutive, maximum terms.

Further, the trial court ordered the sentence in this case to be served consecutively

to the sentence for the community control violations, for an aggregate sentence of at

least 22 years and a maximum sentence of 27.5 years. Francis now presents the

following two assignments of error for our review:

I. The trial court erred when it ordered consecutive sentences without support in the record for the requisite statutory findings under R.C. 2953.08(G)(2) and R.C. 2929.14(C)(4).

II. The trial court erred when it imposed maximum sentences without support in the record for the requisite statutory findings under R.C. 2953.08(G)(2) and R.C. 2929.14(C)(4).

In his first assignment of error, Francis challenges the trial court’s

imposition of consecutive sentences.

Under R.C. 2929.14(C)(4), a trial court may order prison terms to be

served consecutively if it finds “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.” Further, the court must also find any of

the following:

1 See Cuyahoga C.P. Nos. CR-22-667738, CR-22-666991, CR-21-657556, CR-21-

656393, and CR-20-654129. 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.

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.

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).

The findings must be made at the sentencing hearing and incorporated

into the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, ¶ 37.

R.C. 2953.08(G)(2), which guides our review of consecutive-felony

sentences, “compels appellate courts to modify or vacate sentences if they find by

clear and convincing evidence that the record does not support any relevant findings

under * * * (C)(4) of section 2929.14[.]” State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 22; see also State v. Jones, 163 Ohio St.3d 242, 2020-

Ohio-6729, 169 N.E.3d 649, ¶ 28; State v. Roberts, 2017-Ohio-9014, 101 N.E.3d

1067, ¶ 10 (8th Dist.) (“[i]f the court made the required findings in order to impose

consecutive sentences, we must affirm those sentences unless we ‘clearly and

convincingly’ find that the record does not support the court's findings,” quoting R.C. 2953.08(G)(2)); State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 19

(8th Dist.).

There are two ways a defendant can challenge consecutive sentences

on appeal. First, the defendant can argue that consecutive sentences are contrary to

law because the court failed to make the findings required by R.C. 2929.14(C)(4).

See R.C. 2953.08(G)(2)(b); State v. Reindl, 8th Dist. Cuyahoga Nos. 109806,

109807, and 109808, 2021-Ohio-2586, ¶ 13; State v. Nia, 2014-Ohio-2527,

15 N.E.3d 892, ¶ 16 (8th Dist.). Second, the defendant can argue that the record

“clearly and convincingly” does not support the court’s findings made pursuant to

R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Reindl at id. Francis does not

contend that the trial court did not make the required statutory findings, and our

review demonstrates that the court in fact did. Rather, Francis argues that the

record does not support the findings. In addressing this assignment of error, we

review the record and consider whether it does not support the trial court’s

consecutive-sentence findings. State v. Trujillo, 8th Dist. Cuyahoga No. 112442,

2023-Ohio-4125, ¶41, citing State v. Gwynne, Slip Opinion No. 2023-Ohio-3851,

¶ 5.

The record demonstrates that the trial court considered the purposes

and principles of sentencing under R.C. 2929.11, along with the seriousness and

recidivism factors under R.C. 2929.12. The court also considered the need for

deterrence, incapacitation, rehabilitation, and restitution. The court stated that

“[t]his is probably one of the hardest sentencings” it has had and described the circumstances of Francis’s conduct to both the Endres and Francis families as

“devastating.” The court further acknowledged Francis’s struggles with his mental

health but noted that the court’s “attempts to grant leniency based on that serious

mental illness have been exhausted and wasted by” him.

On this record, we are not able to say that the record “clearly and

convincingly” does not support the court’s findings. The record supported all the

trial court’s findings. Namely, that consecutive sentences were necessary to punish

Francis, protect the public from future crime by him, and were not disproportionate

to the conduct or danger posed by him; and further, that consecutive sentences were

necessary given his past history, that his offenses were part of a course of conduct,

and that a single prison term would not adequately reflect the seriousness of his

conduct.

The first assignment of error is overruled.

In his second assignment of error, Francis challenges the imposition

of maximum sentences, which were imposed on each of the counts.

When reviewing felony sentences, appellate courts apply the standard

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

1002, 59 N.E.3d 1231, at ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may

increase, reduce, or modify a sentence, or it may vacate the sentence and remand for

resentencing, only if it “clearly and convincingly” finds either (1) that the record does

not support certain specified findings or (2) that the sentence imposed is contrary

to law. “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or

give its reasons for imposing maximum * * * sentences.” State v. King, 2013-Ohio-

2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, a trial court must consider the

statutory criteria that apply to every felony offense, including those set out in R.C.

2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846

N.E.2d 1, ¶ 38. R.C. 2929.12(B) sets forth nine factors indicating that an offender’s

conduct is more serious than conduct normally constituting the offense, whereas

R.C. 2929.12(C) sets forth four factors indicating that an offender’s conduct is less

serious than conduct normally constituting the offense. Similarly, R.C. 2929.12(D)

and (E) each lists five factors that trial courts are to consider regarding an offender

being more or less likely to commit future crimes.

Statutory maximum sentences do not require any of the findings

specified in R.C. 2953.08(G)(2). Nonetheless, the Ohio Supreme Court has found it

appropriate

for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.

Marcum at ¶ 23.

As noted above, the trial court indicated to Francis at sentencing that

it considered the R.C. 2929.11 and 2929.12 factors. The trial court was not required to discuss the individual factors contained within the statutes, however. See State

v. Roberts, 2d Dist. Montgomery No. 2018-CA-27, 2019-Ohio-49, ¶ 13, citing State

v. Sparks, 2d Dist. Montgomery No. 2017-CA-95, 2018-Ohio-3298, ¶ 8. Thus, an

appellate court cannot infer from a trial court’s failure to discuss the specific

statutory factors that it did not consider them. Id.

Based on our review of the record, including the parties’ sentencing

memoranda, statements, and letters of interested persons, and the body-camera

footage, we do not find that Francis’ felony sentence was clearly and convincingly

unsupported by the evidence.

The second assignment of error is overruled.

Judgment 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 appeal 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.

________________________ MICHAEL JOHN RYAN, JUDGE

LISA B. FORBES, P.J., and FRANK DANIEL CELEBREZZE, III, J., CONCUR