State v. Staten

2021 Ohio 3382

• Court: Ohio Court of Appeals
• Decided: September 24, 2021
• Docket: S-20-026, S-20-027, S-21-008
• Status: Published

Opinion

[Cite as State v. Staten, 2021-Ohio-3382.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-20-026 S-20-027 Appellee S-21-008

Trial Court No. 17 CR 904 17 CR 378 20 CR 34

v.

Marcus Staten DECISION AND JUDGMENT

Appellant Decided: September 24, 2021

*****

Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.

Brett A. Klimkowsky, for appellant.

ZMUDA, P.J.

I. Introduction

{¶ 1} In this consolidated appeal, appellant, Marcus T. Staten, appeals three

July 6, 2020 judgments of the Sandusky County Court of Common Pleas, sentencing him to an aggregate prison term of 47 months following his conviction for drug trafficking

and his violation of the conditions of two previously-imposed community control

sanctions. For the following reasons, we affirm the trial court’s judgments but remand

this matter to the trial court for a nunc pro tunc entry as described herein.

A. Facts and Procedural Background

{¶ 2} On January 10, 2020, appellant was indicted on three counts of trafficking in

cocaine in violation of R.C. 2925.03(A)(1) and (C)(4)(a), each a fifth-degree felony. The

indictment was assigned Sandusky County Court of Common Pleas case No. 20CR034.

Appellant appeared for arraignment on January 17, 2020, and entered a not guilty plea to

all three counts. On February 11, 2020, following negotiations with the state, appellant

appeared for a change of plea hearing at which he entered a guilty plea to one count of

trafficking in cocaine in exchange for the state’s agreement to request dismissal of the

other two counts at sentencing. The trial court accepted appellant’s guilty plea and set

the matter for sentencing on April 7, 2020.

{¶ 3} At the time of the indictment in case No. 20CR034, appellant was serving

separate three-year terms of community control imposed on his previous felony

convictions in Sandusky County Court of Common Pleas case Nos. 17CR378 and

17CR904. In those cases, appellant was convicted of possession of cocaine in violation

of R.C. 2925.11(A) and (C)(4)(a) and failure to comply with the order of a police officer

in violation of R.C. 2921.331(B), respectively. The trial court had imposed a three-year

term of community control for each conviction. Following appellant’s indictment in case

2. No. 20CR034, the state filed a “Notice of Probation Violation” in each of the prior cases

alleging that appellant’s conduct underlying the indictment violated the conditions of his

community control. The trial court set a community control violation hearing for

January 23, 2020.

{¶ 4} Following multiple continuances in all three cases, the trial court held a

combined hearing on appellant’s community control violations and sentencing on

June 30, 2020. Following witness testimony related to appellant’s compliance with the

conditions of his community control, the trial court determined appellant had violated

those conditions and ordered his community control terms to be terminated

unsuccessfully. The trial court then imposed a 24-month prison term for appellant’s

community control violation in case No. 17CR378 and a 12-month prison term for

appellant’s community control violation in case No. 17CR904. The trial court also

sentenced appellant to an 11-month prison term in case No. 20CR034. At the state’s

request, the trial court dismissed the remaining counts pursuant to the plea agreement.

The trial court ordered appellant to serve all three sentences consecutively, resulting in an

aggregate prison term of 47 months. Appellant’s sentence in each case was memorialized

in separate July 6, 2020 judgment entries.

{¶ 5} On July 24, 2020, appellant timely appealed the judgments in case Nos.

17CR378 and 17CR904. We sua sponte ordered those appeals to be consolidated. After

reviewing the parties’ briefs, we recognized that the parties’ arguments addressed the

sentence in case No. 20CR304 even though appellant had not filed an appeal from that

3. judgment. To resolve this discrepancy, we ordered appellant to file a motion for delayed

appeal in case No. 20CR034. On July 20, 2021, we granted appellant’s motion and sua

sponte ordered all three appeals consolidated. Having resolved this procedural

deficiency, all three cases are now properly before the court in this consolidated appeal.

B. Assignments of Error

{¶ 6} Appellant asserts the following errors for our review:

1. The trial court’s sentence of Marcus T. Staten violates R.C.

2929.14(C)(4)—and thus is contrary to law—insofar as the trial court did

not make appropriate findings of fact for appellant to be sentenced in a

consecutive manner.

2. The trial court’s sentence of appellant is excessive and contrary to

Ohio law.

II. Law and Analysis

{¶ 7} Appellant’s assignments of error challenge the trial court’s imposition of his

sentences. We review felony sentences under R.C. 2953.08(G)(2). State v. Goings, 6th

Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or vacate

and remand a trial court’s imposition of consecutive sentences only if we clearly and

convincingly find that: (1) “the record does not support the sentencing court’s findings

under division * * * (C)(4) of section 2929.14, * * * ” or (2) “the sentence is otherwise

contrary to law.” Id., citing R.C. 2953.08(G)(2). The burden is on appellant to identify

clear and convincing evidence in the record to show that the trial court erred in imposing

4. his sentence. State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 6.

Appellant does not meet this burden.

A. The trial court made all findings necessary to impose consecutive sentences.

{¶ 8} In his first assignment of error, Staten argues that the trial court erred in

ordering his sentences to be served consecutively “without complying with R.C.

2929.14(C)(4) by making the requisite findings of fact.” Initially, we note that the trial

court is not required to make “findings of fact” in order to impose consecutive sentences

as appellant argues. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470. A trial court is, however, required to make certain statutory findings under R.C.

2929.14(C)(4) before imposing consecutive sentences. State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659. R.C. 2929.14(C)(4) states:

If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds 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,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

5. imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release 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.

{¶ 9} Put simply, this statute requires the trial court to make three statutory

findings before imposing consecutive sentences. State v. Beasley, 153 Ohio St.3d 497,

2018-Ohio-493, 108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find (1) that consecutive sentences are

necessary to protect the public or to punish the offender; (2) that consecutive sentences

are not disproportionate to the seriousness of the offender’s conduct and to the danger

that the offender poses to the public; and (3) that R.C. 2929.14(C)(4)(a), (b), or (c) is

applicable. Beasley at ¶ 252. “[T]he trial court must make the requisite findings both at

the sentencing hearing and in the sentencing entry.” (Emphasis in original.) Id. at ¶ 253,

citing Bonnell at ¶ 37. While “a word-for-word recitation of the language of the statute is

not required,” a reviewing court must be able to discern that the trial court engaged in the

6. correct analysis and the record must contain evidence to support the trial court’s findings.

Bonnell at ¶ 29.

{¶ 10} At sentencing, the trial court recited the statutory language to find that

consecutive sentences were necessary to protect the public and that appellant was on

community control at the time he committed the offenses—two of the three findings

required under R.C. 2929.14(C)(4). As to proportionality—the third required finding—

the trial court noted that the maximum, aggregate sentence it could impose on appellant

was 72 months. In considering this, the trial court stated “I agree that 72 months is – it’s

a little long, and I’m not opposed to the 48 months.” The trial court ultimately

determined that an aggregate 47-month prison term was proper. This statement reflects

the trial court’s consideration of the proportionality of consecutive sentences to

appellant’s conduct and its finding that the imposition of consecutive sentences was

indeed not disproportionate as described in R.C. 2929.14(C)(4). Based on this, we find

that the record reflects that the trial court engaged in the correct analysis to make this

finding despite the lack of a “word-for-word recitation of the language of the statute.”

Bonnell at ¶ 29. Therefore, we find that the trial court made all three necessary findings

under R.C. 2929.14(C)(4). As a result, appellant’s first assignment of error is found not

well-taken.

{¶ 11} Although the trial court made the appropriate statutory findings at the

sentencing hearing, our review of the record reveals that the trial court failed to

7. incorporate those findings in its judgment entries in case Nos. 17CR378 and 17CR904.1

Consecutive sentencing findings must be made at both the sentencing hearing and in the

judgment entry. Beasley at ¶ 253, citing Bonnell at ¶ 37. The trial court’s failure to

incorporate those findings in its judgment entries does not, however, require this court to

reverse the trial court’s judgment. Instead, “[a] 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.” Bonnell at ¶ 30, citing State v. Qualls, 131

Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718. Because the trial court’s judgment

entries in case Nos. 17CR378 and 17CR904 omit the consecutive sentencing findings

made at appellant’s sentencing hearing, we remand this matter to the trial court for a nunc

pro tunc entry to correct those omissions.

B. Appellant’s challenge to the length of his prison sentences under R.C. 2929.11 is unfounded as a matter of law.

{¶ 12} In his second assignment of error, appellant argues that his prison sentences

were “excessive” because they are not the minimum sanction necessary to satisfy the

purposes of felony sentencing under R.C. 2929.11. Specifically, appellant argues that the

length of his sentences will exacerbate his mental health conditions and admitted drug

addiction rather than promote his effective rehabilitation. Appellant requests that we

1 The judgment entry in case No. 20CR034 includes the consecutive sentencing findings.

8. review the trial court’s consideration of the R.C. 2929.11 purposes of felony sentencing

and reduce his sentences accordingly.

{¶ 13} R.C. 2953.08(G)(2) does not authorize this court to consider appellant’s

arguments. In State v. Jones, Slip Opinion No. 2020-Ohio-6729, ¶ 42, the Ohio Supreme

Court held that R.C. 2953.08(G)(2) does not permit 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.”

Applying Jones, we previously held that “assigning error to the trial court’s imposition of

sentence as contrary to law based solely on its consideration of R.C. 2929.11 and 2929.12

is no longer grounds for this court to find reversible error.” State v. Orzechowski, 6th

Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 13 (emphasis added). For these reasons,

we cannot consider appellant’s arguments alleging the trial court erred in considering the

R.C. 2929.11 purposes of felony sentencing. Therefore, his second assignment of error

does not assign any reviewable error and is found not well-taken.

III. Conclusion

{¶ 14} We find each of appellant’s assignments of error not well-taken and affirm

the July 6, 2020 judgments of the Sandusky County Court of Common Pleas. We

remand this matter to the trial court for the limited purpose of issuing a nunc pro tunc

entry in case Nos. 17CR378 and 17CR904 to incorporate its finding under R.C.

9. 2929.14(C)(4) into those judgment entries. Appellant is ordered to pay the costs of this

appeal pursuant to App.R.24.

Judgment affirmed and remanded.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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