State v. Hollowell

2015 Ohio 5261

• Court: Ohio Court of Appeals
• Decided: December 17, 2015
• Docket: 102782
• Status: Published

Opinion

[Cite as State v. Hollowell, 2015-Ohio-5261.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102782

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MARQUIS HOLLOWELL DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-575538-A

BEFORE: Stewart, J., Jones, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: December 17, 2015 ATTORNEY FOR APPELLANT

Thomas A. Rein 700 West St. Clair, Suite 212 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

Glen Ramdhan Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} Defendant-appellant Marquis Hollowell appeals the trial court’s imposition of

consecutive sentences. He argues that the trial court failed to make the statutory

findings required to impose a consecutive sentence. Finding no merit to Hollowell’s

sole assigned error, we affirm.

{¶2} On September 24, 2013, Hollowell pleaded guilty to a single count of

felonious assault. Upon convicting Hollowell, the trial court imposed a three-year

prison sentence to be served consecutive to another prison sentence previously imposed

for which Hollowell was serving a four-year prison term at the time of the sentencing.

On direct appeal from the conviction and sentence, Hollowell argued that the trial court

failed to properly inform him during the plea colloquy and also that the trial court erred

by imposing consecutive sentences. We reversed the conviction finding that the trial

court had indeed failed to inform Hollowell that the state must prove his guilt beyond a

reasonable doubt as mandated by Crim.R. 11(C)(2) and remanded the case to the trial

court. State v. Hollowell, 8th Dist. Cuyahoga No. 100674, 2014-Ohio-2407. As the

resolution of the first assigned error was dispositive of the appeal, this court did not

consider Hollowell’s argument that his consecutive sentences were improper. Id. at ¶ 2.

{¶3} On remand, Hollowell once again pleaded guilty on March 13, 2015, and the

court sentenced him to serve two years in prison, instead of the previously imposed three

years, to run consecutive to the prison sentence he was then serving. This sentence on

remand forms the basis of the current appeal. {¶4} In this appeal, Hollowell again assigns as error that the imposition of

consecutive sentences is contrary to law because the court failed to make all the findings

required by R.C. 2929.14(C)(4).

{¶5} R.C. 2929.14(C)(4) requires a sentencing judge to make the following

findings before imposing consecutive sentences: first, that consecutive sentences are

necessary to protect the public from future crime or to punish the offender; second, 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 third, that either (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 R.C. section 2929.16,

2929.17, or 2929.18, or was under postrelease 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

courses of conduct adequately reflects the seriousness of the offender’s conduct, or (c) the

offender’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.

{¶6} Hollowell argues that the court’s imposition of consecutive sentences failed

to conform to the requirements of R.C. 2929.14(C)(4). To comply with the statute, a

trial court must make certain findings at the sentencing hearing, and “‘must note that it

engaged in the analysis’ and that it ‘has considered the statutory criteria and specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324,

326, 715 N.E.2d 131 (1999).

{¶7} The record reflects that the court made the first and second findings. It

stated, “I think it’s necessary to punish Mr. Hollowell to protect the public from future

crime and it’s not disproportionate to the conduct of the danger imposed upon him.” Tr.

58. Hollowell complains that this statement does not reflect the second finding’s

requirement of “danger the offender poses to the public.” We disagree. Although the

court did not use the exact phrase “danger the offender poses to the public,” it did not

have to use the verbatim terms of the statute. State v. Venes, 2013-Ohio-1891, 992

N.E.2d 453, ¶ 13 (8th Dist.). Consecutive sentences will be upheld if “the reviewing

court can discern that the trial court engaged in the correct analysis.” Bonnell at ¶ 29.

{¶8} We view the court’s statement as sufficient to satisfy the R.C. 2929.14(C)(4)

findings that consecutive sentences are necessary to protect the public from Hollowell’s

future crime and to punish him, and are not disproportionate to Hollowell’s conduct and

the danger he poses to the public. Although the trial court did not state the second

finding in exact terms, we can discern that the trial court engaged in the correct analysis

when it considered a consecutive sentence in relation to the danger Hollowell’s conduct

poses to the public.

{¶9} We next consider whether the court made the third required finding. {¶10} The court made the finding that two of Hollowell’s multiple offenses were

committed as part of one course of conduct and the harm caused by his multiple offenses

was so great that no single prison term adequately reflects the seriousness of his conduct.

The court told Hollowell, “Your criminal history demonstrates that consecutive

sentences is [sic] necessary, and it also appears to be a course of conduct with your prior

sentence * * * and is considered a course of conduct.” Tr. 57-58. The court also

explained, “A single term would not adequately reflect the seriousness of your conduct.”

Tr. 58.

{¶11} Additionally, the court’s statements reflect the finding that Hollowell’s

history of criminal conduct demonstrates that consecutive sentences are necessary to

protect the public from his future crime. In addition to the above statement indicating

Hollowell’s criminal history, the court stated, “I think it’s necessary to punish Hollowell

to protect the public from future crime.” Tr. 58.

{¶12} R.C. 2929.14(C)(4) requires the court to make at least one finding under the

third requirement. Here, the court has clearly made two.

{¶13} Finally, Hollowell also complains that the sentencing entry does not reflect

what the trial court said in open court at the sentencing hearing. Bonnell requires that the

trial court not only make the required findings at the sentencing hearing, so as to “afford[]

notice to the offender and to defense counsel,” but also incorporate the findings into the

sentencing entry, “because a court speaks through its journal.” Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29, citing State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47. Our review of the journal shows that the court

incorporated its findings in the March 17, 2015 journal entry.

{¶14} Judgment affirmed.

It is ordered that appellee recover of said 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.

______________________________________________ MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., P.J., and MARY EILEEN KILBANE, J., CONCUR