State v. Mock

2017 Ohio 8866

• Court: Ohio Court of Appeals
• Decided: December 7, 2017
• Docket: 105060
• Status: Published

Opinion

[Cite as State v. Mock, 2017-Ohio-8866.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105060

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CLIFFORD D. MOCK DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-593123-A

BEFORE: Celebrezze, J., Kilbane, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: December 7, 2017 ATTORNEY FOR APPELLANT

Brian A. Smith Brian A. Smith, Attorney at Law 755 White Pond Drive, Suite 403 Akron, Ohio 44320

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor BY: Khalilah A. Lawson Gregory J. Ochocki Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant, Clifford Mock (“appellant”), brings the instant appeal

challenging the trial court’s sentence for aggravated vehicular assault and driving under

the influence of alcohol or drugs. Specifically, appellant argues that the trial court’s

three-year prison sentence is not supported by the record. After a thorough review of the

record and law, this court affirms.

I. Factual and Procedural History

{¶2} On January 18, 2015, appellant was involved in a motor vehicle accident on

Interstate 90. Appellant’s passenger (“victim”) was seriously injured during the

accident. Appellant refused to submit to a chemical test for alcohol or drugs following

the accident.

{¶3} In Cuyahoga C.P. No. CR-15-593123-A, the Cuyahoga County Grand Jury

returned a three-count indictment charging appellant with (1) aggravated vehicular

assault, a second-degree felony in violation of R.C. 2903.08(A)(1)(a), with a furthermore

specification alleging that appellant was driving under suspension at the time of the

offense; (2) aggravated vehicular assault, a third-degree felony in violation of R.C.

2903.08(A)(2)(b), with a furthermore specification alleging that appellant was driving

under suspension; and (3) driving under the influence, a first-degree misdemeanor in

violation of R.C. 4511.19(A)(1)(a). Appellant was arraigned on March 10, 2015; he pled

not guilty to the indictment. {¶4} The parties reached a plea agreement. On July 27, 2015, appellant pled

guilty to Counts 2 and 3 as charged in the indictment. Count 1 was nolled. The trial

court referred appellant to the probation department for a presentence investigation report

(“PSI”) and set the matter for sentencing.

{¶5} The trial court held a sentencing hearing on August 25, 2015.1 The trial

court imposed a prison term of three years on Count 2 and a six-month prison term on

Count 3. The trial court ordered the counts to run concurrently.

{¶6} On October 11, 2016, appellant, acting pro se, filed an appeal challenging the

trial court’s sentence. This court appointed appellate counsel to represent appellant on

November 4, 2016. Appellant assigns one error for review:

I. The record does not support the imposition of the three-year prison sentence upon [a]ppellant.

II. Law and Analysis

{¶7} In his sole assignment of error, appellant argues that the trial court’s

three-year prison sentence is not supported by the record.

{¶8} 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, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a

reviewing court may increase, reduce, or modify a sentence, or it may vacate and remand

1 During this sentencing hearing, the trial court also sentenced appellant in Cuyahoga C.P. No. CR-15-595911-A, in which appellant pled guilty to aggravated assault, a fourth-degree felony in violation of R.C. 2903.12(A)(1), and domestic violence, a first-degree misdemeanor in violation of R.C. 2919.25(A). the matter for resentencing, only if we clearly and convincingly find that either the record

does not support the sentencing court’s statutory findings or the sentence is contrary to

law. State v. Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-99, ¶ 7. A sentence is

contrary to law if the sentence falls outside the statutory range for the particular degree of

offense or the trial court failed to consider the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth

in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶

10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.

{¶9} In the instant matter, appellant contends that the trial court failed to consider

the following mitigating factors in imposing a three-year prison sentence:2 (1) appellant

showed remorse for his conduct, (2) appellant has a history of alcohol abuse, and (3)

appellant has mental health issues.

{¶10} Appellant, his mother, and his aunt discussed appellant’s substance abuse

issues during the sentencing hearing. Appellant’s mother appeared to request that

appellant be ordered to complete a treatment program for alcohol abuse. She explained

that she wants somebody to help appellant and fears that appellant will either die or kill

another person if he continues to drink the way he does. Appellant’s aunt requested that

appellant receive treatment for his alcoholism and opined that “[j]ail is not the answer.”

(Tr. 42.) She explained that appellant has been to prison before and that he continues to

2 Appellant appears to challenge the trial court’s consideration of the R.C. 2929.11 and 2929.12 sentencing factors that govern felony sentencing, rather than the court’s consideration of R.C. 2929.21 and 2929.22 that govern misdemeanor sentencing. drink upon his release because “he’s not getting help for the things that he need[s].” (Tr.

42.) She asserted that appellant’s conduct in relation to the accident was neither

malicious nor intentional.

{¶11} Appellant spoke on his own behalf during the sentencing hearing. He

explained that he and the victim had been drinking on the night of the accident, but he

acknowledged that it was not an excuse for his conduct. He stated that he does not

remember being in the car or driving on the highway on the night of the accident.

Appellant asserted that he needs help for his alcohol and drug abuse: “I need help for

alcohol and drugs. * * * I just can’t take like one drink and then stop. Once I drink, I

drink until I pass out. I don’t remember nothing.” (Tr. 67.)

{¶12} Appellant stated that he tried to get help for his substance abuse issues. He

asserted that he went to University Hospitals on four occasions to seek treatment, but

every time he went there, they sent him to the psych ward at St. Vincent’s Charity

Hospital. Appellant explained that his probation officer sent him to an outpatient

treatment program and that he was going to two Alcoholics Anonymous meetings per

week before the accident.

{¶13} Regarding appellant’s mental health issues, appellant’s mother indicated that

on one occasion when appellant went to University Hospitals, hospital personnel told her

that appellant was suicidal and suffering from depression. Appellant’s aunt also stated

that appellant suffers from depression.

{¶14} Defense counsel stated that he has known appellant for a couple of years, and opined that appellant has “a lot of undiagnosed and untreated mental health issues”

that need to be addressed. (Tr. 32-33.) Counsel explained that appellant “does not

speak a lot” and “[d]oes not articulate a lot in connection with the case.” (Tr. 33.)

Defense counsel asked the court to consider ordering appellant to complete treatment to

address his issues. The attorney representing appellant in the domestic violence case

asserted that appellant is “a man of few words” and opined that appellant “has been

suffering from depression since he’s been in jail.” (Tr. 34.)

{¶15} After reviewing the record, we find that the trial court’s sentence is not

contrary to law. The trial court’s sentence on the aggravated vehicular assault count is

within the permissible statutory range under R.C. 2929.14(A)(3)(a). The trial court’s

sentence on the driving under the influence count is within the permissible statutory range

under R.C. 2929.24(A)(1). The trial court’s sentencing journal entry provides, in

relevant part, “the court considered all required factors of the law. The court finds that

prison is consistent with the purpose of R.C. 2929.11.” Aside from this notation in the

sentencing entry, the record reflects that the trial court did, in fact, consider all the

relevant R.C. 2929.11 and 2929.12 sentencing factors — including the mitigating factors

presented by appellant.

{¶16} The trial court indicated that it reviewed appellant’s PSI and confirmed that

the prosecution and appellant’s counsel reviewed the report. Appellant’s criminal

history included convictions for drug trafficking and having weapons while under disability;3 obstructing official business, resisting arrest, domestic violence, aggravated

menacing, and criminal damaging;4 and drug possession.5

{¶17} The trial court indicated that it considered the statements of appellant’s

attorneys, appellant’s family members, appellant, the victim’s family members, and the

prosecution. The trial court considered that appellant did not intentionally injure the

victim. However, the trial court considered the severity of the injuries that the victim

sustained in the car accident. The trial court emphasized that appellant was fortunate

that the victim’s injuries were not fatal.

{¶18} Finally, contrary to appellant’s assertion, the record reflects that the trial

court considered the relevant mitigating factors. First, the trial court considered that

appellant showed remorse for his conduct. After appellant apologized to the victim and

the trial court, the trial court suggested that appellant “turn around and apologize to [the

victim’s family directly].” (Tr. 64.)

{¶19} Second, the trial court considered appellant’s history of alcohol-related

issues. The trial court inquired about appellant’s progress with the twelve steps. The

court explained that appellant had been given tools to address his substance abuse issues,

but failed to take advantage of these opportunities. The trial court explained that

appellant made the decision to drink on the night of the car accident. The trial court

3 Cuyahoga C.P. No. CR-11-554347-A. 4 Cuyahoga C.P. No. CR-09-530187-A. 5 Cuyahoga C.P. Nos. CR-09-528299-A and CR-06-487547-A. emphasized that appellant has to “accept and take responsibility for [his] life” and that he

has to stop making excuses and deal with his alcohol issues.

{¶20} Third, the trial court considered the statements about appellant’s mental

health. After hearing the statements from appellant’s attorneys and family members, the

trial court explained, “I don’t necessarily disagree that [appellant] may benefit from some

mental health treatment.” (Tr. 45.) However, the court acknowledged that its options

for imposing a sentence were “limited” because appellant pled guilty to a high-tier felony

of the third-degree. The trial court stated that appellant needs to “take responsibility on

his own” and take advantage of the mental health treatment and programs offered in

prison. (Tr. 44.)

{¶21} To the extent that appellant disagrees with the weight that the trial court

afforded to these relevant mitigating factors, such a determination lies within the sound

discretion of the trial court. State v. Switzer, 8th Dist. Cuyahoga No. 102175,

2015-Ohio-2954, ¶ 12, citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793

(2000). Accord State v. Stovall, 8th Dist. Cuyahoga No. 104787, 2017-Ohio-2661, ¶ 31.

Appellant’s sentence is not contrary to law simply because he disagrees with the way in

which the trial court weighed the factors under R.C. 2929.11 and 2929.12 and applied

these factors in crafting an appropriate sentence. See State v. Ledbetter, 8th Dist.

Cuyahoga No. 104077, 2017-Ohio-89, ¶ 11.

{¶22} Based on the foregoing analysis, we find that the trial court’s sentence is not

contrary to law. The sentence is within the permissible statutory ranges and the record reflects that the trial court considered the purposes and principles of felony sentencing set

forth in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12.

Accordingly, appellant’s sole assignment of error is overruled.

{¶23} Although appellant does not raise the issue on appeal, we find that the trial

court’s sentencing journal entry is inconsistent with the sentence imposed in open court

during the sentencing hearing. During the sentencing hearing, the trial court sentenced

appellant to a prison term of three years on the aggravated vehicular assault count and ten

days in jail on the driving under the influence count. The trial court’s sentencing journal

entry provides, in relevant part, “the court imposes a prison sentence at the Lorain

Correctional Institution of 3 year(s). A 3 year prision [sic] sentence is imposed on

Count 2, to run concuurent [sic] with a 6 month sentence on Count 3.”

{¶24} It is well established that a court speaks through its journal entries. State v.

Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. However, a trial

court may correct clerical errors at any time in order to conform to the transcript of the

proceedings. State v. Lugo, 8th Dist. Cuyahoga No. 103893, 2016-Ohio-2647, ¶ 3,

citing State v. Steinke, 8th Dist. Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 47; Crim.R. 36.

Trial courts retain continuing jurisdiction to correct clerical errors in judgments with a

nunc pro tunc entry to reflect what the court actually decided. State ex rel. Cruzado v.

Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19.

{¶25} Because the trial court’s sentencing journal entry is inconsistent with the

sentence imposed in open court, we remand the matter to the trial court for the limited purpose of issuing a nunc pro tunc journal entry that accurately reflects the sentence

imposed at the sentencing hearing.

III. Conclusion

{¶26} After thoroughly reviewing the record, we affirm the trial court’s sentence.

The trial court’s sentence is not contrary to law.

{¶27} Judgment affirmed; the matter is remanded to the trial court for the limited

purpose of issuing a nunc pro tunc journal entry that accurately reflects the sentence

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 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

MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR