State v. Neal

2023 Ohio 4414

Opinion

[Cite as State v. Neal, 2023-Ohio-4414.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112347 v. :

CHRISTOPHER NEAL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: December 7, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-20-653274-A, CR-21-655903-A, and CR-22-669330-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Patrick J. Lavelle and Kevin R. Filiatraut, Assistant Prosecuting Attorneys, for appellee.

Joseph V. Pagano, for appellant.

SEAN C. GALLAGHER, J.:

Appellant Christopher Neal appeals the sentences imposed by the

trial court in Cuyahoga C.P. Nos. CR-20-653274, CR-21-655903, and CR-22-669330. Upon review, we affirm but remand for the limited purpose of

issuing a nunc pro tunc sentencing entry in CR-21-655903.

Appellant entered guilty pleas to certain charges in the underlying

cases on November 21, 2022, and the trial court held a sentencing hearing on

January 11, 2023.

In CR-21-655903, appellant was charged under a six-count

indictment. The charges arose from an incident that occurred on or about

August 30, 2020, while appellant was in the county jail. Appellant, who had

smuggled drugs into the jail by concealing them in his rectum, provided fentanyl to

his cellmate, who then died of an overdose. The victim was last seen alive prior to

5:55 p.m., and appellant did not call for help until 3:30 a.m., at which point the

victim’s body was cold. Appellant ultimately pleaded guilty to Count 1 for

involuntary manslaughter, a felony of the first degree in violation of

R.C. 2903.04(A), and to Count 4 for illegal conveyance into a detention facility, a

felony of the third degree in violation of R.C. 2921.36(A)(2). The remaining counts

were nolled. The victim’s mother spoke at the sentencing hearing. The trial court

imposed an indefinite sentence of 10 to 15 years on Count 1, and a sentence of

36 months on Count 4. The terms were run concurrent to each other and concurrent

to a federal case, but consecutive to the sentence imposed in CR-21-653274. Because

the sentencing entry does not correctly reflect the indefinite term of 10 to 15 years

that was imposed on Count 1, we remand this case to the trial court for the issuance

of a nunc pro tunc sentencing entry. In CR-20-653274, appellant was charged with drug-related offenses

under seven counts of the indictment. The charges arose from an incident that

occurred on or about September 18, 2020, which was after appellant had been

released from county jail and while the police were investigating the overdose

incident. Appellant ultimately pleaded guilty to Count 2, drug possession involving

a fentanyl-related compound, a felony of the first degree in violation of

R.C. 2925.11(A), with a specification for forfeiture of money in a drug case. The

remaining counts were nolled. The trial court ordered appellant to forfeit $2,289

and imposed an indefinite sentence of 10 to 15 years, which was run consecutive to

the sentence imposed in CR-21-655903, and concurrent to appellant’s federal case,

which pertained to a separate drug-related investigation. The trial court also

imposed a mandatory fine of $10,000.

In CR-22-669330, appellant pleaded guilty to an amended charge of

attempted assault of a corrections officer, a misdemeanor of the first degree in

violation of R.C. 2903.02 and 2903.13(A). The charge arose from an incident that

occurred on or about January 20, 2022, while appellant was in a local correctional

facility. The trial court sentenced appellant to time served.

Appellant timely filed this appeal.

Under his first assignment of error, appellant challenges the trial

court’s imposition of consecutive sentences. Appellant argues that the trial court

failed to make all the required statutory findings under R.C. 2929.14(C)(4) and that

the record clearly and convincingly does not support the imposition of consecutive sentences. Pursuant to R.C. 2953.08(G)(2)(a), in reviewing consecutive sentences,

the appellate court must “review the record, including the findings underlying the

sentence” and “may take any action authorized by this division if it clearly and

convincingly finds” that “the record does not support the sentencing court’s findings

under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.”1

Pursuant to R.C. 2929.14(C)(4), to impose consecutive sentences, a

trial court must find that “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.” The trial court also must make at least one of the

findings set forth under R.C. 2929.14(C)(4)(a)-(c). “When imposing consecutive

sentences, a trial court must state the required findings as part of the sentencing

hearing” and “incorporate its statutory findings into the sentencing entry.” State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. A trial court is

not required to recite verbatim the statutory language; however, we must be able to

1 We note that the Supreme Court of Ohio recently decided State v. Gwynne, Slip

Opinion No. 2023-Ohio-3851 (“Gwynne V”), upon reconsideration, and vacated its decision in State v. Gwynne, Slip Opinion No. 2022-Ohio-4607 (“Gwynne IV”). Therefore, we follow the pre-Gwynne IV deferential standard of review applied to appellate review of consecutive-sentence findings. See State v. Scott, 8th Dist. Cuyahoga No. 109689, 2022-Ohio-1486, ¶ 9 (recognizing the deferential nature of the appellate standard of review for consecutive-sentence findings), citing State v. Venes, 2013-Ohio- 1891, 992 N.E.2d 4452, ¶ 21 (8th Dist.). We are cognizant that the majority and separate concurring opinion in State v. Hayes, 8th Dist. Cuyahoga No. 111927, 2023-Ohio-4119, recently applied the Gwynne IV de novo standard of review to consecutive-sentence findings despite Gwynne IV having been vacated. glean from the record that all of the findings required by R.C. 2929.14(C) were made

by the trial court. Bonnell at ¶ 36-37.

In this matter, appellant asserts that the trial court did not find that

consecutive sentences are not disproportionate to “the danger the offender poses to

the public” and that its findings were otherwise incomplete. Our review reflects

otherwise.

At the sentencing hearing, the trial court made the required statutory

findings. The trial court found “[c]onsecutive sentences on this case is necessary to

protect others from future crime” and noted that “[appellant] knew the Fentanyl was

a deadly drug, and he gave it to his inmate, and then he also did not call for help for

what looks to be about 10 years.” The trial court also found that “I don’t believe this

is disproportionate to the seriousness of the offender’s conduct” and noted that “he

caused a death.” Though the trial court did not state word for word that it did not

find consecutive sentences disproportionate to the danger the offender poses to the

public, the trial court had stated that consecutive sentences were “not

disproportionate to the crimes that you have committed.” The trial court referenced

“the Fentanyl being taken into the jail, which caused the death of [the victim]” and

had discussed how appellant kept selling fentanyl despite knowing people were

dying from the drug and how appellant had fentanyl even after the victim’s death.

The trial court further found that the offense was committed while appellant was

under sanction and that appellant “was incarcerated at the time he committed the

death.” Also, the trial court found that “the harm caused by both the Fentanyl, Count 2, in [CR-20-653274], as well as in [CR-21-655903] involuntary

manslaughter were so great, no single prison term would adequately reflect the

seriousness of this conduct.” Finally, when the trial court imposed the consecutive

10- to 15-year prison terms, the trial court considered the aggregate term of

incarceration that would result in a total minimum term of 20 years, plus 10 “for the

institution to decide if you serve any part of the Reagan Tokes sentence.”

Upon our review, we can discern from the record that the trial court

engaged in the proper analysis and made all the consecutive-sentence findings

required by R.C. 2929.14(C)(4) at the sentencing hearing. Also, the trial court

incorporated its statutory findings into the sentencing entry in CR-21-655903,

including its finding that “consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the

public.” The trial court’s deviation from the statutory language at the sentencing

hearing was not so egregious so as to render the sentence clearly and convincingly

contrary to law. See State v. McAllister, 5th Dist. Licking No. 2019 CA 00118, 2020-

Ohio-4492, ¶ 37-38 (considering similar language); see also State v. Ray, 8th Dist.

Cuyahoga No. 107450, 2019-Ohio-1346, ¶ 37.

Additionally, upon our review of the record, we do not clearly and

convincingly find that the record does not support the trial court’s findings.

Nevertheless, appellant challenges the trial court’s consideration of the sentencing

factors under R.C. 2929.12(C)(4). However, the trial court stated in its sentencing

entries that it had “considered all required factors of the law” and appellant has not affirmatively demonstrated otherwise. This alone is sufficient to fulfill its

obligations under R.C. 2929.11 and 2929.12. See State v. Clinton, 153 Ohio St.3d

422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 243, citing State v. Smith, 8th Dist. Cuyahoga

No. 100206, 2014-Ohio-1520, ¶ 14. Furthermore, the record reflects that the trial

court was informed of mitigating factors, had considered the presentence-

investigation report (“PSI report”), and rejected the defense counsel’s argument for

concurrent sentences. Contrary to appellant’s argument, it is not for an appellate

court to review whether the record clearly and convincingly supports the sentencing

factors and considerations under R.C. 2929.11 and 2929.12, and “[n]othing in

R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence

in the record and substitute its judgment for that of the trial court concerning the

sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” See State v.

Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 31 and 42.

Appellant’s first assignment of error is overruled.

Under the second assignment of error, appellant claims the trial court

erred in imposing a mandatory fine of $10,000 because the record establishes that

he was indigent and the trial court had discretion to waive the fine. The mandatory

fine was imposed in CR-20-653274 upon appellant’s first-degree felony conviction

for drug possession in violation of R.C. 2925.11(A).

A trial court’s decision with respect to the imposition of a mandatory

fine where the offender has an affidavit alleging indigency is reviewed under an

abuse of discretion standard. See State v. Gipson, 80 Ohio St.3d 626, 635, 687 N.E.2d 750 (1998). R.C. 2929.18(B)(1) states, in pertinent part, “[i]f an offender

alleges in an affidavit filed with the court prior to sentencing that the offender is

indigent and unable to pay the mandatory fine and if the court determines the

offender is an indigent person and is unable to pay the mandatory fine described in

this division, the court shall not impose the mandatory fine upon the offender.” The

burden is on the offender to affirmatively demonstrate indigency and an inability to

pay the mandatory fine. Gipson at 635. The filing of the requisite affidavit does not

automatically entitle a defendant to a waiver of a mandatory fine, nor does indigency

alone. Id. at 634. In Gipson, the Supreme Court of Ohio expressed that it did not

believe the General Assembly intended “to preclude a trial court from imposing fines

on able-bodied defendants who are fully capable of work but who happen to be

indigent and unemployed at the moment of sentencing.” Id. at 636.

Our review of the record demonstrates that the trial court was aware

appellant filed an affidavit of indigency and that the trial court had reviewed the

presentence-investigation report. The PSI report reflects that the appellant was 33

years old at the time and did not have any significant physical health problems. He

reported doing seasonal work and odd jobs and stated he had been working for a

landscaping company since 2014 and earning $480 weekly. In denying defense

counsel’s request to waive the fine, the trial court stated, “[H]e’ll have enough time

in prison to pay [the fine] through [prison] work” and indicated that “if they do not

accept prison employment, [appellant could] file another motion.” The trial court further stated “I think you can work it off, especially since he said he wants to learn

a trade for coming out. That would be a good thing to do.”

Upon the record before us, we find the trial court did not abuse its

discretion in imposing the mandatory fine. The second assignment of error is

overruled.

Under the third assignment of error, appellant raises constitutional

challenges to the Reagan Tokes Law and the trial court’s imposition of an indefinite

sentence. We summarily overrule this assignment of error on the authority of State

v. Hacker, Slip Opinion No. 2023-Ohio-2535.

Judgment affirmed. Case remanded to the trial court solely to issue

a nunc pro tunc sentencing entry in Cuyahoga C.P. No. CR-21-655903 to correctly

reflect the indefinite term of 10 to 15 years that was imposed on Count 1.

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 with instructions. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, J., CONCURS; ANITA LASTER MAYS, A.J., CONCURS IN JUDGMENT ONLY