[Cite as State v. Jordan, 2016-Ohio-5709.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103813
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ANTONIO JORDAN DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595432-A
BEFORE: Boyle, J., McCormack, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: September 8, 2016 ATTORNEY FOR APPELLANT
Mary Catherine O’Neill 50 Public Square, Suite 1900 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Mahmoud S. Awadallah Andrew J. Santoli David Schwark Assistant County Prosecutors Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Antonio Jordan, appeals his convictions and sentence.
He raises four assignments of error for our review:
1. The trial court erred by sentencing appellant to multiple consecutive sentences.
2. Appellant received ineffective assistance of counsel during his plea negotiations.
3. The trial court erred by proceeding to sentence the appellant when it was clear the plea had been involuntary.
4. The trial court erred by sentencing appellant for the crime of murder, in violation of R.C. 2903.02, as opposed to sentencing appellant for the crime of involuntary manslaughter in violation of R.C. 2903.03.
{¶2} Finding no merit to his arguments, we affirm.
I. Procedural History
{¶3} In May 2014, in Cuyahoga C.P. No. CR-13-581343-A, Jordan pleaded
guilty to drug trafficking in violation of R.C. 2925.03(A)(2). The trial court sentenced
Jordan to two years of community control sanctions and reserved a sentence of 12 months
if Jordan violated the terms of his community control.
{¶4} In May 2015, Jordan was indicted in another case, Cuyahoga C.P. No.
CR-15-595432-A, on nine counts, including one count each of aggravated murder,
murder, felonious assault, voluntary manslaughter, aggravated assault, discharging a
firearm on or near prohibited places, having a weapon while under a disability, and two
counts of endangering children. All of the counts except for the weapons disability count and the endangering children counts carried one- and three-year firearm
specifications.
{¶5} In September 2015, Jordan pleaded guilty to an amended indictment of
voluntary manslaughter in violation of R.C. 2903.03(A), a first-degree felony, with the
one- and three-year firearm specifications; aggravated assault in violation of R.C.
2903.12(A)(1), a fourth-degree felony; discharging a firearm at or near prohibited places
in violation of R.C. 2923.162(A)(3), a first-degree felony; having a weapon while under a
disability in violation of R.C. 2923.13(A)(3), a third-degree felony; and the two counts of
endangering children in violation of R.C. 2919.22(A), first-degree misdemeanors. The
remaining counts were nolled.
{¶6} In November 2015, the trial court held a joint sentencing hearing in both
cases, Case Nos. CR-13-581343-A (for violating his community control sanctions) and
CR-15-595432. Prior to sentencing, the trial court merged the voluntary manslaughter
count with the aggravated assault count; the state elected to proceed on voluntary
manslaughter.
{¶7} In Case No. CR-15-595432-A, the trial court sentenced Jordan to three
years in prison for the firearm specifications, to be served prior to and consecutive to 11
years in prison for voluntary manslaughter; nine years in prison for discharging a firearm
at or near prohibited places, to be served concurrently to voluntary manslaughter; and 24
months in prison for having a weapon while under a disability to be served consecutively
to voluntary manslaughter, for a total of 16 years in prison. The trial court also sentenced Jordan to six months in jail on each count of child endangering and ordered
that they be served concurrent to each other and to all other time.
{¶8} In Case No. CR-13-581343-A, the trial court sentenced Jordan to 12 months
in prison to be served consecutively to the sentence imposed in Case No.
CR-15-595432-A. Thus, the aggregate prison term for both cases was 17 years in
prison.
{¶9} It is from these judgments that Jordan appeals.
II. Plea and Sentencing Hearings
{¶10} At the plea hearing, the state informed the court of the factual basis that led
to the charges. Jordan was in a car with a woman and her two children. The woman
was on the phone with her children’s father, who was the victim in this case. The
woman and the victim were attempting to arrange a meeting spot where the victim could
pick up the children. They agreed to meet at a market. On the way to the market,
Jordan, the woman, and the victim got into several “heated” arguments on a speaker
phone. When Jordan and the woman arrived at the market, the woman went into the
market, while Jordan and the children remained in the car. At some point, the victim
arrived. Jordan and the victim got into an argument outside of the car. Jordan pulled
out a gun and shot the victim in front of the children. Jordan got back in the vehicle
with the children still in the car. He drove a short distance away, stopped and removed
both children from the car, and placed them on the corner of the street. One of the
children was an infant, and the other child was a toddler. A bystander saw Jordan shoot the victim, drive away, stop at the corner, and place the two children on the corner. The
witness picked up the children and called the police. The witness only saw Jordan with
a gun in his hand, not the victim.
{¶11} The state also reviewed the plea deal and maximum penalties involved with
each count. The state further informed the court that the voluntary manslaughter and
aggravated assault counts were the only counts that merged for purposes of sentencing.
{¶12} The court then asked Jordan’s two defense attorneys if that is how they
understood the plea. They responded that it was, but then one of them added:
Your Honor, I would just add for the record, so it is clear, there was an outstanding issue regarding some testing. We talked to our client about that. He understands that the county coroner is testing some potentially exculpatory materials.
I talked to the court and the state about that, and he is aware that that testing is going on, and he would still like to proceed forward with today’s plea.1
{¶13} The court then asked Jordan if he wished to enter into a plea that day.
Jordan responded that he did. Further, in response to the court’s questioning, Jordan
informed the court that he was 40 years old, was a United States citizen, had a two-year
Associates of Arts degree, that he was on disability from serving in the military, and that
he was on community control sanctions in another case before the court. The court
At the sentencing hearing, the facts surrounding this “testing” is made more clear. Jordan 1
apparently claimed that he retrieved a gun from the victim after shooting him. Defense counsel turned the gun over to the state for testing a week before the scheduled trial date. On the date of the scheduled trial, Jordan pleaded guilty despite the fact that the DNA testing had not yet come back on the gun. made sure that Jordan understood that by pleading guilty, he could violate his probation in
the other case.
{¶14} The court then reviewed Jordan’s constitutional rights with him and made
sure that he understood that by entering into the plea, he was waiving those rights.
{¶15} The court also reviewed the maximum penalty associated with each charge
and the parameters and nuances of postrelease control with Jordan, as well as the fact that
only the voluntary manslaughter and aggravated assault counts merged. Jordan then
pleaded guilty to each count.
{¶16} The court asked Jordan if he was satisfied with his defense attorneys.
Jordan replied, “Oh, yes, sir.” Jordan further told the court that no one made any
promises or threats to him to get him to enter into the plea, and Jordan agreed that his
entering into the plea was “voluntarily made of [his] own free will.” Finally, the court
asked Jordan if he understood that there were no agreements or promises as to what the
court would do at sentencing. Jordan responded, “Correct.” The court then accepted
Jordan’s guilty pleas, finding that he made a knowing, intelligent, and voluntary plea and
accepted his guilty pleas. The state and both defense counsel told the court that it
satisfied Crim.R. 11.
{¶17} Defense counsel requested that a presentence investigation report (“PSI”)
be completed before sentencing, as well as a mitigation of penalty report.
{¶18} At the sentencing hearing, the court indicated that it received and reviewed
the mitigation of penalty report from the court psychiatric clinic, as well as the PSI. {¶19} The state reviewed the facts of the shooting with the court. While doing
so, the state discussed the fact that it had retrieved the victim’s cell phone. On the
victim’s cell phone, the state found two photos that were “of significance.” One was a
photo of three guns that the mother of the victim’s children sent to the victim that were
purportedly Jordan’s guns. The other photo was a picture of a “small caliber handgun”
that the victim had apparently taken on April 12 (presumably 2015, but the record is not
clear as to what year). The picture had not been sent to anyone in a text message; it was
just a picture of a small gun. The state told the court that it was aware that Jordan had
claimed that the victim had a weapon on him, and that Jordan retrieved that weapon after
shooting the victim. Defense counsel turned the gun over to the state a week before
trial. The gun was tested for DNA, and it was inconclusive for the victim’s fingerprints.
{¶20} At that point, defense counsel objected, stating that they never saw a photo
“of that.” The parties had a sidebar off the record. When they were back on the
record, defense counsel agreed that the photos were shared with them in discovery, but
they said that they could not view them because they were too dark “due to their
transmission in the portal.” The court asked defense counsel if that changed “any
position of the defense.” Both defense counsel responded, “No, your honor.”
{¶21} Jordan’s mother spoke to the court on his behalf. Defense counsel then
spoke on behalf of Jordan, stating that they would have presented testimony at trial that
the victim had a gun and “came at” Jordan. Defense counsel further stated that the victim was highly intoxicated, almost twice the legal limit. When the victim “came at”
Jordan, Jordan “reacted” and shot the victim.
{¶22} Defense counsel further informed the court that Jordan had been in the
military. When Jordan came home from the military, he had post traumatic stress
disorder (“PTSD”). Defense counsel argued that the victim’s death was not the worst
form of voluntary manslaughter, which defense counsel asserted was why the state
reduced the charge from murder to voluntary manslaughter.
{¶23} Jordan also spoke to the court. He apologized for everything that
happened. He denied that he ever spoke to the victim on the phone. He said he never
met the victim prior to the day in question. Jordan said that he had four witnesses,
whom he named, saying they were present at the time of the shooting. Jordan stated that
the state’s witness was a “new acquaintance” of his who he sold drugs to. Jordan opined
that the state’s witness was not credible. He said that when he dropped the children off
at the corner, he was “30 feet” from the market, where his “new acquaintance” picked
them up.
{¶24} Next, Jordan stated that the state “reneged” from the deal because the state
previously said they would “run everything concurrent.” The court interrupted Jordan,
saying “wait a minute * * * that was not the deal.” The court stated, “now you are
getting into * * * the confidence this court has in the plea.” The court said, “I was there,
and I was making sure everything was fair.” The court reminded Jordan that at the plea
hearing, the court made sure that Jordan knew that there were no other mergers besides the voluntary manslaughter and the aggravated assault. Jordan replied, “Okay. I take
that back. I apologize.” Jordan apologized to the court three times. The court then
said, “all right, I just want to make sure.” Jordan then apologized five more times,
stating, “I apologize. Okay. I apologize. I misunderstood that, Your Honor. I
apologize. Strike that. I apologize to the court and everybody. I apologize.”
{¶25} Jordan stated that he just wanted to tell the court that he was defending
himself at the time of the shooting. The court reminded Jordan that he pleaded guilty to
voluntary manslaughter. Jordan replied, “it’s a gray area, Your Honor.” Jordan stated
that the victim was dead because Jordan had a gun, but if he had not had a gun, he would
be dead instead of the victim. Jordan further stated that the only danger the children
were in that day was from the victim, not Jordan. Lastly, Jordan apologized to the
victim’s family.
{¶26} The court stated that the victim’s mother was correct when she said that
“everyone lost here.” The court said, “One mother lost her son. Murdered. Killed.
Another mother is losing her son to incarceration.” The court discussed the purposes
and principles of sentencing, as well as the seriousness and recidivism factors. The
court stated that it did not know what happened that night, but in looking at the
seriousness of the crime, the victim was “killed” as a result of Jordan’s conduct.
{¶27} The court told Jordan that as a result of his community control sanctions in
the first case, that he should not have been there selling drugs. The court stated to
Jordan that he should not have had a gun either. According to Jordan’s probation officer, he tested positive for PCP on April 15, 2015. The court said that it would
consider that fact as well. The court noted that in looking at the facts, it was aware that
there was “provocation” as that was indicated in the plea bargain from aggravated murder
to voluntary manslaughter. But the court also noted that there are many reasons for plea
bargains and that it was not going to consider what the plea was.
{¶28} The court then imposed the sentence for each offense. In sentencing
Jordan to consecutive sentences, the court stated:
[T]his Court imposed consecutive sentences because it’s necessary to protect and punish, it’s not disproportionate, and this court finds that this crime was committed while under a probationary period and the fact that your criminal history shows that consecutive terms are needed to protect the public.
I think the sentence is fair. It reflects the seriousness of your conduct, the seriousness of the crimes charged in this case, and the fact that you should not have nor should you ever have had a weapon with you, and nor should you have been out on the streets being positive for PCP on April 15th.
{¶29} The court also advised Jordan about postrelease control, saying that “if” he
got out of prison, he would be subject to a period of five years of mandatory postrelease
control.
{¶30} It is from this judgment that Jordan appeals, raising his four assignments of
error for our review. We will address his assignments of error out of order and together
where necessary for ease of discussion.
III. Ineffective Assistance of Counsel {¶31} In his second assignment of error, Jordan argues that he received ineffective
assistance of counsel during his plea negotiations, which caused his plea to be
involuntary. Jordan points to certain statements made at his plea and sentencing
hearings that he claims “made it abundantly clear” that he received ineffective assistance
of counsel.
{¶32} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel’s performance fell
below an objective standard of reasonable representation, and (2) that counsel’s errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel’s errors, the
result of the proceeding would have been different. Strickland v. Washington, 466 U.S.
668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.
“Reasonable probability” is “probability sufficient to undermine confidence in the
outcome.” Strickland at 694.
{¶33} Where a defendant challenges trial counsel’s performance in connection
with a guilty plea, the defendant can establish the prejudice necessary for an ineffective
assistance of counsel claim only by demonstrating that there is a reasonable probability
that, but for counsel’s deficient performance, he would not have pled guilty to the offense
at issue and would have insisted on going to trial. State v. Williams, 8th Dist. Cuyahoga
No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203
(1985); State v. Wright, 8th Dist. Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12.
{¶34} First, Jordan points to the fact that his counsel “allowed a plea to take place
* * * despite knowledge that potentially exculpatory evidence was still in the process of
being tested by the coroner’s office.” We disagree with Jordan that this shows his
counsel were ineffective. His counsel informed the court at the beginning of the plea
hearing that Jordan wished to proceed with the plea hearing despite the fact that the DNA
testing was not completed yet. The trial court asked Jordan if that was true; he
responded that it was.
{¶35} Next, Jordan contends that because his counsel admitted at the sentencing
hearing that they had never seen the two photos from the victim’s cell phone, it “indicates
that they had not fully reviewed the discovery presented by the state.” One of the photos
was a photo of three guns that the mother of the victim’s children sent to the victim; the
three guns were purportedly Jordan’s guns. The second photo was apparently one that
the victim had taken of a small caliber gun that was purportedly the victim’s own gun.
Assuming for the sake of argument that Jordan’s counsel were ineffective for failing to
look at these photos, Jordan has not established that if he had seen a photo of a gun on the
victim’s cell phone that was taken ten days before he shot the victim that the photo would
have made him want to go to trial. Notably, Jordan had decided to enter into a guilty
plea before the results of the DNA testing came back on what Jordan alleged to be the victim’s gun. Thus, we disagree with Jordan that “knowledge of these photographs”
would have influenced his decision to enter into the plea.
{¶36} Jordan further maintains that his statements at the sentencing hearing
support “the unknowing and involuntary nature of the guilty pleas” because they show
that he would have been able to establish that he acted in self-defense and that he would
have had four witnesses testify to that fact. He claims the fact that his counsel never
subpoenaed these four witnesses prior to the plea, which took place on the scheduled trial
date, supports his argument that his counsel “never attempted to put forth a defense” for
him.
{¶37} Courts have held that failure to interview and subpoena witnesses who may
have offered exculpatory testimony at trial is neglectful and could constitute deficient
performance. State v. Akers, 11th Dist. Portage No. 95-P-0073, 1997 Ohio App. LEXIS
1354, *23 (Apr. 4, 1997). But a mere allegation that the testimony of a prospective
witness may have been helpful is insufficient to establish the prejudice prong of the test
for ineffective assistance. Id. That is, prejudice cannot be shown when the record
before the appellate court contains no indication as to what the testimony of the
prospective witnesses would have been. State v. Bleasdale, 11th Dist. Ashtabula No.
95-A-0047, 1996 Ohio App. LEXIS 3876, *15-16 (Sept. 6, 1996). Under such
circumstances, a claim of ineffective assistance could only be shown in a petition for
postconviction relief. See State v. Cooperrider, 4 Ohio St.3d 226, 448 N.E.2d 452
(1983). See also State v. Coulverson, 10th Dist. Franklin No. 01AP-893, 2002 Ohio App. LEXIS 1290, *20 (Mar. 21, 2002); State v. Gales, 9th Dist. Lorain No.
00CA007541, 2000 Ohio App. LEXIS 5428, *24 (Nov. 22, 2000) (counsel’s mere failure
to subpoena witnesses is not a substantial violation of an essential duty to a client in the
absence of a showing that testimony of any one or more of the witnesses would have
assisted the defense).
{¶38} Jordan further contends that his counsel was ineffective because they
allowed him to plea without ever requesting a psychological exam be conducted despite
the fact that he had “well documented issues with mental health.” In support of this
issue, Jordan points to the fact that his counsel requested a mitigation of penalty report be
conducted by the court’s mental health clinic in preparation for sentencing. The fact that
Jordan’s counsel requested a mitigation of penalty report be conducted prior to
sentencing, however, does not establish that Jordan has “well documented issues with
mental health.”
{¶39} We find, after a reviewing the entire record, that there is nothing
demonstrating that a psychological evaluation was needed. Despite Jordan informing
the court that he had PTSD from being in the military, there is no evidence throughout the
proceedings that Jordan displayed any type of behavior that would alert trial counsel to
request a psychological evaluation or request that the case be transferred to the mental
health docket.
{¶40} Finally, Jordan argues that he was informed by both counsel that the counts
would run consecutively. In raising this argument, Jordan “concedes that the record supports the state’s indication that no agreement had been made regarding merger,” but
asserts that it serves to reinforce the lack of voluntariness of his plea. We disagree. At
the plea hearing, the trial court made sure that no one promised Jordan anything in
exchange for his plea, including the court. Moreover, it is a fundamental principle of
appellate review that a reviewing court is limited to the record of proceedings at trial.
Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13; App.R.
12(A)(1)(b); App.R. 16(A)(7).
{¶41} Jordan’s second assignment of error is overruled.
IV. Voluntariness of Plea
{¶42} In his third assignment of error, Jordan argues that the trial court erred in
proceeding to sentence him after it became clear that his plea was involuntary. In
arguing this point, he relies on the issues that he raised in his second assignment of error.
{¶43} The underlying purpose of Crim.R. 11(C) is to convey certain information to
a defendant so that he or she can make a voluntary and intelligent decision regarding
whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115
(1981). “The standard for reviewing whether the trial court accepted a plea in
compliance with Crim.R. 11(C) is a de novo standard of review.” State v. Cardwell, 8th
Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51 Ohio St.2d
86, 364 N.E.2d 1163 (1977). “It requires an appellate court to review the totality of the
circumstances and determine whether the plea hearing was in compliance with Crim.R.
11(C).” Id. {¶44} Crim.R. 11(C)(2) provides in pertinent part that in felony cases the court
may refuse to accept and shall not accept a plea of guilty without first addressing the
defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶45} A trial court must strictly comply with the Crim.R. 11(C)(2)(c) requirements
that relate to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Under the more stringent standard for
constitutionally protected rights, a trial court’s acceptance of a guilty plea will be
affirmed only if the trial court engaged in meaningful dialogue with the defendant which,
in substance, explained the pertinent constitutional rights “in a manner reasonably
intelligible to that defendant.” Ballard at paragraph two of the syllabus.
{¶46} With respect to the nonconstitutional requirements of Crim.R. 11, set forth
in Crim.R. 11(C)(2)(a) and (b), reviewing courts consider whether there was substantial
compliance with the rule. Veney at ¶ 14-17. “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.” State v. Nero, 56 Ohio St.3d 106, 108, 564
N.E.2d 474 (1990); Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163. “[I]f it appears from
the record that the defendant appreciated the effect of his plea and his waiver of rights in
spite of the trial court’s error, there is still substantial compliance.” State v. Caplinger,
105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995).
{¶47} Further, a defendant must show prejudice before a plea will be vacated for a
trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects of
the colloquy are at issue. Veney at ¶ 17. The test for prejudice is whether the plea
would have otherwise been made. Id.; see also State v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748, 893 N.E.2d 462.
{¶48} After a thorough review of the plea hearing, we conclude that the trial court
fully complied with Crim.R. 11 in making sure that Jordan’s plea was voluntarily,
knowingly, and intelligently entered. The court reviewed the nature of the charges with
Jordan, as well as the maximum penalty involved with each charge. The court further
informed Jordan of the effect of the plea and ensured that he understood the effect of the
plea. And the court also informed Jordan of the constitutional rights he was waiving and
made sure that he understood that by pleading guilty, he was waiving those rights.
{¶49} Further, at the sentencing hearing, when the trial court interrupted Jordan
because he was undermining the court’s confidence in the plea with his statements that the state reneged on the deal, Jordan apologized to the court numerous times and stated
that he was wrong for implying that he believed he would get concurrent sentences.
{¶50} Accordingly, Jordan’s third assignment of error is overruled.
V. Consecutive Sentences
{¶51} In his first assignment of error, Jordan argues that the trial court erred when
it sentenced him to consecutive sentences.
{¶52} R.C. 2953.08(G)(2) provides that our review of felony sentences is not an
abuse of discretion. An appellate court must “review the record, including the findings
underlying the sentence or modification given by the sentencing court.” Id. If an
appellate court clearly and convincingly finds either that (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,” then “the appellate court may increase, reduce, or otherwise
modify a sentence * * * or may vacate the sentence and remand the matter to the
sentencing court for resentencing.” Id.
{¶53} R.C. 2929.14(C)(4) requires trial courts to engage in a three-step analysis
when imposing consecutive sentences. First, the trial court must find that “consecutive
service is necessary to protect the public from future crime or to punish the offender.”
Id. Next, the trial court must find that “consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender poses to the
public.” Id. Finally, the trial court must find that at least one of the following applies:
(1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while under postrelease control for a prior offense; (2) 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 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 the offender’s conduct; or (3) 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)(a) - (c).
{¶54} The Ohio Supreme Court expressly rejected the claim that a trial court must
give a “talismanic incantation of the words of the statute” when imposing consecutive
sentences. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
Indeed, the Supreme Court stated that “a word-for-word recitation of the language of the
statute is not required, and as 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.
{¶55} Moreover, a trial court is required not only to make the statutory findings
required for consecutive sentences at the sentencing hearing, but also to incorporate its
findings into its sentencing entry. Id. at the syllabus.
{¶56} After a review of the sentencing hearing in this case, we find that the trial
court made the required R.C. 2929.14(C)(4) findings and that the record supports those
findings. Although the trial court did not use the exact language of the statute, this court can discern that it engaged in the proper analysis and made the required findings. The
court specifically stated that consecutive sentences were “necessary to protect and
punish,” were “not disproportionate,” that Jordan committed these crimes while under
community control sanctions, and that consecutive terms were “needed to protect the
public.” The court further found that consecutive sentences reflected “the seriousness”
of the crimes and the fact that Jordan should not have had a weapon or tested positive for
PCP.
{¶57} Jordan argues that the trial court failed to make one of the three findings
under R.C. 2929.14(C)(4)(a) through (c). He asserts that although he “was serving a term
of community control sanctions, there is no indication that [his] history of criminal
conduct demonstrates that consecutive sentences are required.” He further claims that
there was no evidence of a “course of conduct.” First, a trial court need only find that an
offender was on probation or community control when he or she committed the new
offense or that at least two or more offenses were committed as part of a course of
conduct or that an offender’s criminal history demonstrates that consecutive sentences are
necessary to protect the public. As Jordan stated, he was on community control when he
shot and killed the victim in this case. This satisfies the third finding.
{¶58} Jordan further argues that the trial court failed to make the required findings
for consecutive sentences for the 12 months it imposed for Case No. CR-13-581343-A.
We disagree. The trial court’s consecutive sentence findings included facts regarding
Jordan’s probation violation. {¶59} Further, the trial court informed Jordan at the original sentencing hearing in
Case No. CR-13-581343-A that if he violated the terms of his community control
sanctions, it would “result in more restrictive sanctions or a prison term of 12 months.”
At the joint-sentencing hearing on the new case and the community control violations
case, the court explained that Jordan violated the terms of his community control by not
only shooting and killing the victim, but by even just having the gun. Further, Jordan
tested positive for PCP while on community control sanctions and was selling drugs.
Thus, we find that the record supports the trial court’s findings under R.C. 2929.14(C)(4).
{¶60} Accordingly, we overrule Jordan’s first assignment of error.
VI. Sentencing for Voluntary Manslaughter versus Murder
{¶61} In his fourth assignment of error, Jordan asserts that the trial court
improperly sentenced him for murder, rather than voluntary manslaughter. He claims
that the court used consecutive sentence to effectively sentence him for murder. He
further points to two comments made by the trial court that he claims shows that the trial
court intended to punish him for murder: (1) “one mother lost her son. Murdered.
Killed[,]” and (2) “[i]f you get out of prison, you’re subject to postrelease control.”
{¶62} After reviewing the entire record in this case, we find no error on the part of
the trial court. Based on the felonies that Jordan pleaded guilty to (besides aggravated
assault because it merged), which were voluntary manslaughter, a first-degree felony,
with one- and three-year firearm specifications, discharging a firearm at or near
prohibited places, a first-degree felony, and having a weapon while under a disability, a third-degree felony, the trial court could have sentenced Jordan to a maximum of 28 years
in prison if he had ordered them all to be served consecutively. We have already
determined that the trial court properly imposed consecutive sentences and the record
supported such imposition. But for these offenses, the trial court sentenced Jordan to 16
years in prison, considerably less than the maximum. Thus, we find no merit to Jordan’s
arguments.
{¶63} Further, regarding the two comments made by the trial court that Jordan
claims support his argument, he is looking at them in a vacuum. When viewing them in
the context of the entire proceedings, they do not support Jordan’s claim that the trial
court intended to sentence him for murder instead of voluntary manslaughter. The trial
court properly sentenced Jordan within the confines of the sentencing statutes.
{¶64} Jordan’s fourth assignment of error is overruled.
{¶65} Judgment affirmed.
It is ordered that appellee recover from appellant the 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. MARY J. BOYLE, JUDGE
TIM McCORMACK, P.J., CONCURS; EILEEN T. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
EILEEN T. GALLAGHER, J., DISSENTING:
{¶66} I concur with the majority’s resolution of Jordan’s second, third, and
fourth assignments of error. However, I respectfully dissent from the majority’s
determination that the trial court made the findings necessary to run the sentence imposed
in Case No. CR-13-581343-A consecutive to the sentences imposed in Case No.
CR-15-595432-A.
{¶67} In this case, the trial court made the following statement when imposing
consecutive sentences:
As for the consecutive prison terms, on the having weapon while under disability to the voluntary manslaughter, this court imposed consecutive sentences because it’s necessary to protect and punish, it’s not disproportionate, and this court finds that this crime was committed while under a probationary period and the fact that your criminal history shows that consecutive terms are needed to protect the public. I think the sentence is fair. It reflects the seriousness of your conduct, the seriousness of the crimes charged in this case, and the fact that you should not have nor should you ever had a weapon with you, and nor should you have been out on the streets being positive for PCP on April 15th.
(Emphasis added.) {¶68} I agree with the majority’s conclusion that the foregoing colloquy was
sufficient to satisfy the findings requirements of R.C. 2929.14(C)(4) with respect to
Jordan’s voluntary manslaughter and having a weapon while under disability convictions in Case No. CR-15-595432-A. However, the statement excludes consideration of the
12-month prison term imposed on Jordan’s violation of community control in Case No.
CR-13-581343-A, which was ordered to run consecutive to the sentences imposed in
Case No. CR-15-595432-A. The court simply did not address Case No.
CR-13-581343-A during its discussion of the relevant R.C. 2929.14(C)(4) findings.
{¶69} Accordingly, I would sustain Jordan’s first assignment of error regarding the
trial court’s failure to make the necessary R.C. 2929.14(C)(4) findings for the sentence
imposed in Case No. CR-13-581343-A.