State v. Kamal

2021 Ohio 2261

• Court: Ohio Court of Appeals
• Decided: July 1, 2021
• Docket: 109781
• Status: Published

Opinion

[Cite as State v. Kamal, 2021-Ohio-2261.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109781 v. :

WALI KAMAL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: July 1, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-644213-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Marcus A. Henry, Assistant Prosecuting Attorney, for appellee.

Allison S. Breneman, for appellant.

FRANK D. CELEBREZZE, JR., J.:

Defendant-appellant Wali Kamal brings this appeal challenging his

eight-year prison sentence for two counts of gross sexual imposition. Appellant

argues that the trial court erred in imposing consecutive sentences. After a thorough

review of the record and law, this court affirms appellant’s sentence but remands the matter to the trial court for the sole purpose of issuing a nunc pro tunc

sentencing entry incorporating all of the consecutive sentence findings the trial

court made at the sentencing hearing.

I. Factual and Procedural History

The instant matter arose from an ongoing sexually abusive relationship

between appellant and the victim in this case, M.R. Although appellant abused the

victim for more than one year, this appeal pertains to an incident that occurred on

September 14, 2019. At the time, the victim was 12 years old, and appellant was in

a relationship with the victim’s mother.1

The victim alleged that appellant came into her bedroom and ordered

her to come downstairs. According to the Cleveland Police Department’s Case

Information Form, appellant threatened that the victim would be “homeless on the

street” if she did not come downstairs with him. Appellant proceeded to sexually

assault the victim in the living room. He kissed the victim’s face, lifted her shirt,

touched and sucked her breasts, and touched her buttocks. The victim, who was 12

years old at the time, told appellant no and to stop, but he did not comply. When

the victim disclosed the abuse to her cousins in 2019, she alleged that she had been

sexually abused for more than one year.

On September 30, 2019, in Cuyahoga C.P. No. CR-19-644213-A, a

Cuyahoga County Grand Jury returned a four-count indictment charging appellant

1 Appellant is referenced as the victim’s “stepfather” in the record. (Tr. 48.) with (1) – (2) gross sexual imposition, third-degree felonies in violation of R.C.

2907.05(A)(4), (3) kidnapping, a second-degree felony in violation of R.C.

2905.01(A)(4), with a furthermore clause alleging that the victim was under the age

of 18 and appellant released the victim in a safe place unharmed, and a sexual

motivation specification, and (4) violating a protection order, a third-degree felony

in violation of R.C. 2929.27(A)(1), with a furthermore clause alleging that appellant

violated the protection order while committing a felony offense. Count 1 pertained

to appellant touching the victim’s breasts, and Count 2 pertained to appellant

touching the victim’s buttocks. Appellant pled not guilty to the indictment during

his October 3, 2019 arraignment.

The parties reached a plea agreement during pretrial proceedings.

Under the plea agreement, Counts 1 and 2 were amended to add the name of the

victim, M.R. On February 10, 2020, appellant pled guilty to Counts 1 and 2, as

amended. Counts 3 and 4 were nolled. The trial court ordered a presentence

investigation report and set the matter for sentencing.

The trial court held a sentencing hearing on March 16, 2020. The trial

court sentenced appellant to a prison term of eight years: four years on each gross

sexual imposition count, to run consecutively with one another. The trial court

classified appellant a Tier II sex offender and reviewed appellant’s reporting

requirements.

On June 23, 2020, appellant filed the instant appeal challenging his

eight-year prison sentence. Appellant assigns one error for review: I. The trial court erred in imposing consecutive sentences.

II. Law and Analysis

In his sole assignment of error, appellant argues that the trial court

erred in imposing consecutive sentences.

We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 1, 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a

reviewing court may overturn the imposition of consecutive sentences where the

court “clearly and convincingly” finds 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.”

R.C. 2929.14(C)(4) provides that in order to impose consecutive

sentences, the trial court must find that consecutive sentences are (1) necessary to

protect the public from future crime or to punish the offender, (2) that such

sentences would not be disproportionate to the seriousness of the conduct and to

the danger the offender poses to the public, and (3) that one of the following applies:

(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 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 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.

Conformity with R.C. 2929.14(C)(4) requires the trial court to make

the statutory findings at the sentencing hearing, which means that “‘the [trial] court

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). To this end, a reviewing

court must be able to ascertain from the record evidence to support the trial court’s

findings. Bonnell at ¶ 29. “A trial court is not, however, required to state its reasons

to support its findings, nor is it required to [recite verbatim] the statutory language,

‘provided that the necessary findings can be found in the record and are

incorporated in the sentencing entry.’” State v. Sheline, 8th Dist. Cuyahoga No.

106649, 2019-Ohio-528, ¶ 176, quoting Bonnell at ¶ 37.

In the instant matter, appellant concedes that the trial court made the

required R.C. 2929.14(C)(4) findings in imposing consecutive sentences. The record

reflects that the trial court made the requisite findings pursuant to R.C.

2929.14(C)(4) in imposing consecutive sentences. In making the first finding under

R.C. 2929.14(C)(4), the trial court stated, “consecutive sentences are necessary to

protect our community and to punish you[.]” (Tr. 95.)

In making the second finding under R.C. 2929.14(C)(4), also known

as the proportionality finding, the trial court stated, consecutive sentences are “not disproportionate to what you did in this matter.” (Tr. 95.) The trial court

emphasized that “there [were] multiple occasions where these acts took place and

multiple harm to the victim in this matter.” (Tr. 95.) The victim was 12 years old at

the time appellant committed the offenses.

Although the trial court did not explicitly find that consecutive

sentences were not “disproportionate to the seriousness of [appellant’s] conduct and

to the danger [appellant] poses to the public,” the trial court was not required to

recite the statutory language verbatim, and the trial court’s statements during the

sentencing hearing, when viewed in their entirety, clearly indicate that the trial court

considered proportionality with respect to both the seriousness of appellant’s

conduct and the danger appellant posed to the public. See State v. Hollis, 8th Dist.

Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 23; see also State v. McGowan, 8th Dist.

Cuyahoga No. 105806, 2018-Ohio-2930, ¶ 19-25 (the trial court’s failure to explicitly

make the proportionality finding did not preclude the imposition of consecutive

sentences where the trial court’s statements during the sentencing hearing, when

viewed in their entirety, indicated that the court considered proportionality both

with regard to the seriousness of defendant’s conduct and the danger he posed to

the public); State v. Morris, 2016-Ohio-7614, 73 N.E.3d 1010, ¶ 27-34 (8th Dist.)

(the proportionality finding could be discerned from the record); State v. Amey, 8th

Dist. Cuyahoga Nos. 103000 and 103001, 2016-Ohio-1121, ¶ 15-19 (the trial court’s

statement that consecutive sentences “would not be disproportionate” combined

with statements regarding defendant’s extensive criminal history and the trial court’s statement that defendant had not “responded favorably to sanctions

previously imposed” satisfied proportionality finding); State v. Cooperwood, 8th

Dist. Cuyahoga Nos. 99309, 99310, and 99311, 2013-Ohio-3432, ¶ 40 (the trial

court’s statement that consecutive sentences “would not be disproportionate,” when

viewed “in its context,” constituted a proportionality finding that complied with R.C.

2929.14(C)(4)); State v. Blevins, 2017-Ohio-4444, 93 N.E.3d 246, ¶ 18-23 (8th Dist.)

(although the trial court only made a specific finding that consecutive sentences

were not disproportionate to the seriousness of defendant’s conduct, the trial court’s

statements on the record at sentencing, when viewed in their entirety, clearly

indicated that the court considered proportionality with regard to both the

seriousness of defendant’s conduct and the danger the defendant posed to the

public).

In the instant matter, like Amey, the trial court stated that appellant

“had not done well on probation with prior domestic violence cases, and the Court

sees absolutely no reason that [appellant] should be afforded an opportunity on

community control sanctions.” (Tr. 94.) As noted above, appellant does not

challenge the sufficiency or adequacy of the trial court’s proportionality finding, and

we decline to construct an argument on appellant’s behalf.

Regarding the third finding, the trial court determined that R.C.

2929.14(C)(4)(b) and (c) applied. The trial court stated,

the harm was so great or unusual a single sentence does not adequately reflect the seriousness of your conduct. ***

Your criminal history shows that consecutive terms are needed to protect the public as well.

(Tr. 95-96.)

Accordingly, the record reflects that the trial court made the requisite

findings during the sentencing hearing under R.C. 2929.14(C)(4) in imposing

consecutive sentences.

The trial court incorporated the first, second, and third consecutive

sentence finding under R.C. 2929.14(C)(4)(c) into its sentencing journal entry, as

required by Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. The trial

court’s March 16, 2020 sentencing entry provides, in relevant part,

[t]he court imposes prison terms consecutively finding that consecutive service of the prison term is necessary to protect the public from future crime or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant’s conduct and to the danger defendant poses to the public; and that, defendant’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by defendant.

Although the trial court found at the sentencing hearing that R.C.

2929.14(C)(4)(b) and (c) applied, the trial court only incorporated the R.C.

2929.14(C)(4)(c) finding into its sentencing journal entry.

Even where a trial court omits a required consecutive sentencing finding from its sentencing journal entry, it is well established that the 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.” State v. Wilkins, 8th Dist. Cuyahoga No. 109368, 2021-Ohio-311, ¶ 17, quoting

Bonnell at ¶ 30. In this case, the trial court’s failure to incorporate its finding under

R.C. 2929.14(C)(4)(b) into the sentencing journal entry can be corrected through a

nunc pro tunc sentencing entry on remand.

In challenging the trial court’s imposition of consecutive sentences,

appellant argues that the trial court’s consecutive sentence findings are not

supported by the record or the underlying facts. Appellant challenges the trial

court’s first and second findings under R.C. 2929.14(C)(4).

Specifically, appellant argues that “[a] concurrent term would have

adequately punished [him] and protected the community after considering the facts

of the case,” and that consecutive sentences are “clearly disproportionate to the

crimes committed[.]” Appellant’s brief at 4-5. In support of his argument that there

is no factual basis for imposing consecutive sentences, appellant emphasizes that he

was an alcoholic, he did not touch the victim’s vagina, he did not force the victim to

touch him, and he was “deeply remorseful” at sentencing. Appellant’s brief at 6.

Regarding the third finding, appellant appears to argue that R.C.

2929.14(C)(4)(b) was inapplicable because “the harm was not so great or unusual

that a single term would not adequately reflect the seriousness of the conduct.”

Appellant’s brief at 5. Appellant’s argument regarding the third requisite finding is

misplaced. As noted above, the trial court also found that R.C. 2929.14(C)(4)(c)

applied. The trial court is only required to make one finding under R.C. 2929.14(C)(4)(a)-(c) in order to impose consecutive sentences. Wilkins, 8th Dist.

Cuyahoga No. 109368, 2021-Ohio-311, at ¶ 16.

After reviewing the record, we cannot say that the record clearly and

convincingly does not support the trial court’s findings under R.C. 2929.14(C)(4).

The trial court considered the statements made by defense counsel, appellant, and

the state at sentencing. Defense counsel acknowledged at sentencing that

appellant’s record was “substantial[.]” (Tr. 86.)

The prosecutor emphasized that appellant was a parental figure to the

victim, and that appellant exploited this relationship in perpetrating the offenses.

The prosecutor stated that appellant threatened the victim that if she did not engage

in sexual activity with him, he would leave the home and no longer provide the

financial contributions to the household upon which the victim’s family relied.

(Tr. 89.) Appellant used his employment and income “as a weapon in order to

coerce [the victim] into engaging in sexual activity.” (Tr. 90.)

The prosecutor explained that allegations of sexual activity involving

appellant and the victim arose the year before appellant was arrested in 2019. When

the allegations initially arose, appellant used this financial leverage to get the victim

to recant. (Tr. 90.)

The prosecutor opined that appellant was a danger to his family and

the public based on his criminal history that included domestic violence. The victim

was removed from her mother’s custody following the September 2019 incident. She receives psychiatric counseling to address the trauma she suffered as a result of

appellant’s conduct.

Finally, the prosecutor explained that threats had been issued on

appellant’s behalf by the Heartless Felons to members of the victim’s family. The

threats were specifically issued to the victim’s mother, grandparents, and cousins.

(Tr. 5-6, 93.) The record also reflects that threats were issued to a social worker in

the Department of Children and Family Services sex abuse unit, and the victim’s

mother’s therapist. (Tr. 48-49.)

The trial court confirmed that it reviewed appellant’s presentence

investigation report, the principles and purposes of felony sentencing under R.C.

2929.11, and the applicable seriousness and recidivism factors under R.C. 2929.12.

The trial court explained that it was “troubled by several aspects to this case.”

(Tr. 94.)

The trial court explained that appellant’s criminal history “indicates a

pattern of violence to family members.” (Tr. 94.) Appellant’s criminal history

included arrests, charges, or convictions for importuning, aggravated menacing,

theft, leaving the scene of an accident, disorderly conduct, criminal mischief,

criminal damaging, criminal menacing, assault, alcohol-related offenses, disorderly

conduct, and open container. The trial court acknowledged that appellant had three

prior cases involving domestic violence.

The trial court considered the harm that was caused by appellant’s

conduct, the way appellant conducted himself throughout the proceedings, and whether consecutive sentences were appropriate. The trial court acknowledged that

appellant made ongoing threats to the victim and her mother. The trial court

emphasized that the victim’s mother, who was dependent on appellant’s income, did

not cooperate with the system.

For all of the foregoing reasons, we find that the record before this

court clearly and convincingly supports the trial court’s R.C. 2929.14(C)(4) findings.

Because the trial court made the requisite findings during the sentencing hearing

under R.C. 2929.14(C)(4), and the findings are clearly and convincingly supported

by the record, the trial court did not err in imposing consecutive sentences.

The matter is remanded to the trial court for the limited purpose of

issuing a nunc pro tunc sentencing journal entry incorporating all of the consecutive

sentence findings, including the finding under R.C. 2929.14(C)(4)(b), that the trial

Appellant’s sole assignment of error is overruled.

Judgment affirmed; remanded.

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 is terminated. Case remanded to

the trial court for the issuance of a nunc pro tunc journal entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

ANITA LASTER MAYS, P.J., and EMANUELLA D. GROVES, J., CONCUR