State v. Sumlin

2025 Ohio 550

• Court: Ohio Court of Appeals
• Decided: February 20, 2025
• Docket: 113976, 113977
• Status: Published

Opinion

[Cite as State v. Sumlin, 2025-Ohio-550.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff- Appellee, : Nos. 113976 and 113977 v. :

MICHAEL SUMLIN, :

Defendant-Appellant. :

_______________________________________

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 20, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-23-685927-A and CR-23-678291-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Connor Davin, and Karen Greene, Assistant Prosecuting Attorneys, for appellee.

Charles Ruiz-Bueno Co., LPA, and J. Charles Ruiz-Bueno, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant Michael Sumlin, a.k.a. Michael Brown

(“Sumlin/Brown”), appeals the trial court’s imposition of consecutive sentences following his convictions in two separate cases. Because the trial court made the

appropriate findings when imposing consecutive sentences and we cannot clearly

and convincingly find that the record does not support those findings, we affirm the

judgment appealed.

I. Procedural History and Relevant Facts

A. Indictments

CR-23-678291-A1

On February 7, 2023, in Cuyahoga C.P. No. CR-23-678291-A,

Sumlin/Brown was charged in an eight-count indictment for offenses that occurred

on January 25, 2023. The indictment charged him with two counts of gross sexual

imposition, felonies of the fourth degree; three counts of rape, felonies of the first

degree; and three counts of unlawful sexual conduct with a minor, felonies of the

fourth degree. That same day, a warrant was issued on the indictment. A capias was

sent to the sheriff the following day. A summons was sent to Sumlin/Brown by

certified mail on February 9, 2023, advising him that his arraignment on the

enclosed indictment was scheduled for February 28, 2023. The summons was

received and signed for on February 13, 2023.

On February 28, 2023, the date of the arraignment, the trial court

issued an order noting that the February 7, 2023 capias remained in effect.

1 The indictment is captioned State v. Michael J. Brown. As a result of his failure to appear at the initial February 28, 2023

arraignment hearing, Sumlin/Brown was not arraigned in this case until October

10, 2023.

CR-23-685927-A2

On October 24, 2023, in Cuyahoga C.P. No. CR-23-685927,

Sumlin/Brown was charged in a four-count indictment for offenses that occurred on

April 25, 2023. The indictment charged him with one count of attempted

aggravated murder, a felony of the first degree; attempted murder, a felony of the

first degree; aggravated robbery, a felony of the first degree; and felonious assault, a

felony of the second degree.

Sumlin/Brown was arraigned on October 27, 2023.

B. Plea and Sentencing

On March 13, 2024, Sumlin/Brown entered into a plea agreement with

the State. In Case No. CR-23-678291-A, he pleaded guilty to gross sexual

imposition, a felony of the fourth degree, and attempted kidnapping, a felony of the

second degree, with sexual motivation specifications. In Case No. CR-23-685927-A,

he pleaded guilty to robbery, a felony of the second degree, and felonious assault, a

felony of the second degree, with a three-year firearm specification, as amended.

Sumlin/Brown was labeled a Tier II sex offender.

2 The indictment is captioned State v. Michael Sumlin. Sentencing was held on April 2, 2024. In Case No. CR-23-678291-A,

the trial court sentenced Sumlin/Brown to one year on the gross sexual imposition

offense and two years on the attempted kidnapping offense. The sentences were run

concurrently for a total of two years in Case No. CR-23-678291-A.

In Case No. CR-23-685927-A, the court sentenced Sumlin/Brown to

three years on the robbery offense and three to four and a half years on the felonious

assault offense to run consecutively to the mandatory three-year prison term

imposed on the firearm specification accompanying the felonious assault charge.

The underlying sentences were run concurrently for a total of three to four and a half

years and run consecutively to the three-year prison sentence imposed on the

firearm specification.

The trial court further ordered the prison sentences imposed on each

case to run consecutively. The trial court made the following findings:

The court does find that consecutive sentences [are] 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 Defendant’s conduct and to the danger the offender poses to the public. The offender committed — the court finds the offender committed the crime in case number 685927 while he was under indictment in case number 678291.

On May 28, 2024, Sumlin/Brown filed a delayed appeal from the

sentencing entries issued in each case and requested the cases be consolidated. This

court granted leave to file a delayed appeal and consolidated the cases for appellate

purposes.

Sumlin/Brown’s sole assignment of error reads: The trial court committed prejudicial error by imposing consecutive sentences without making the findings required by Ohio Revised Code § 2929.14(C)(4).

II. Law and Analysis

Prior to imposing consecutive sentences, a trial court is required to

make certain findings set forth in R.C. 2929.14(C)(4). One finding a court may make

is that the offender was “awaiting trial” when the offender committed one or more

of the multiple offenses. R.C. 2929.14(C)(4)(a). In his sole assignment of error,

Sumlin/Brown contends that the record does not support the trial court’s finding

that he was “awaiting trial” in Case No. CR-23-678291-A when he committed the

offenses set forth in Case No. CR-23-685927-A.3 The State responds claiming that

since Sumlin/Brown was under indictment and had been served in Case

No. CR-23-678291-A when he committed the offenses in Case No. CR-23-685927-A,

he was necessarily “awaiting trial” for the purposes R.C. 2929.14(C)(4)(a). We agree

that he was “awaiting trial” when he committed the offenses charged in Case

No. CR-23-685927-A.

A. Applicable Law

A trial court may impose consecutive sentences if it makes the

requisite findings set forth in R.C. 2929.14(C)(4). Specifically, the trial court must

find that the consecutive sentences are 1) “necessary to protect the public from

3 Sumlin/Brown also claims that the court failed to make a finding under R.C. 2929.14(C)(4)(b). This is not in dispute. future crime or to punish the offender”; 2) “not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public; and

3) the trial court must make one of the following findings set forth in

R.C. 2929.14(C)(4)(a)-(c):

(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 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.

R.C. 2929.14(C)(4).

When imposing consecutive sentences, the trial court is not required

to recite the statutory language nor is it required to state the reasons that support its

findings where such support may be found in the record. State v. Percy,

2024-Ohio-664, ¶ 10 (8th Dist.).

In cases in which the trial court makes the appropriate findings to

impose consecutive sentences, “our review of the record is limited to determine

whether the record clearly and convincingly does not support the imposition of

consecutive sentences.” State v. Hoffman, 2023-Ohio-3977, ¶ 35 (8th Dist.), citing R.C. 2953.08(G); State v. Gwynne, 2023-Ohio-3851, ¶ 15. (“[A]n appellate court is

directed that it must have a firm belief or conviction that the record does not support

the trial court’s findings before it may increase, reduce, or otherwise modify

consecutive sentences.”). The standard of proof of clear and convincing evidence “is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such

certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts

sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three

of the syllabus.

B. Sumlin/Brown Was “Awaiting Trial” in Case No. CR-23-678291-A When He Committed the Offenses in Case No. CR-23-685927-A

Sumlin/Brown does not dispute that the trial court made, or

attempted to make, the appropriate findings on the record, which included a finding

under subsection (a) of R.C. 2929.14(C)(4). Rather, he claims that the trial court’s

determination that he was under indictment in Case No. CR-23-678291-A does not

support a finding that he was “awaiting trial” as contemplated in subsection (a).

It is undisputed that Sumlin/Brown committed the offenses in Case

No. CR-23-685927-A while he was under indictment in Case No. CR-23-678291-A.

The question thus becomes whether Sumlin/Brown was “awaiting trial” when he

committed the offenses in Case No. CR-23-685927-A. We conclude he was.

The phrase “awaiting trial” in R.C. 2929.14(C)(4)(a) is not defined in

the Ohio Revised Code. “‘The primary goal of statutory construction is to ascertain and give effect to the legislature’s intent,’ as expressed in the plain meaning of the

statutory language.” State v. Pountney, 2018-Ohio-22, ¶ 20, quoting State v. Lowe,

2007-Ohio-606, ¶ 9. In doing so, the words and phrases of the statute must “be read

in context and construed according to the rules of grammar and common usage.”

R.C. 1.42. Thus, “our duty is ‘to give effect to the words used, not to delete words

used or to insert words not used.’” State v. Maxwell, 2002-Ohio-2121, ¶ 10, quoting

Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm., 20 Ohio St.2d 125, 127

(1969). The general rule is that “‘[i]f the meaning of the statute is unambiguous and

definite, it must be applied as written and no further interpretation is necessary.’”

Diller v. Diller, 2023-Ohio-1508, ¶ 16, quoting State ex rel. Savarese v. Buckeye

Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545 (1996).

We begin our analysis by looking at the plain language of the statute,

specifically the phrase “awaiting trial.” The word await is defined as “to wait for.”

Online, https://www.merriam-webster.com/dictionary/await (accessed Jan. 30,

2025) [https://perma.cc/375F-AUXM]. Simply put, the phrase “awaiting trial”

means “to wait for trial.” In other words, if a trial is forthcoming, the offender is

“awaiting trial.”

The General Assembly has recognized that the return of an

indictment contemplates a trial is forthcoming. Pursuant to R.C. 2939.22, when a

grand jury returns an indictment, “[t]he court shall assign such indictments for trial

under section 2945.02 of the Revised Code, and recognizances of defendants and

witnesses shall be taken for their appearance in court.” (Emphasis added.) In this case, Sumlin/Brown was indicted in Case No. CR-23-678291-A

on February 7, 2023. A summons for the indictment was sent to his address via

certified mail on February 9, 2023, and it was received and signed for on

February 13, 2023. Two months later, when Sumlin/Brown committed the offenses

in CR-23-685927-A, a trial on the pending indictment in Case No. CR-23-678291-A

was forthcoming. Sumlin/Brown was therefore “awaiting trial” when he committed

the latter offenses.

Sumlin/Brown argues that he could not have been “awaiting trial”

since he was capias and had not yet been arraigned, nor had a trial date been set in

Case No. CR-23-678291-A when he committed the offenses in Case

No. CR-23-685927-A. The plain language of the phrase “awaiting trial” is not as

narrow as Sumlin/Brown interprets it. R.C. 2929.14(C)(4)(a) does not require an

offender to have been arraigned or a trial date be set in order for an offender to be

“awaiting trial.” Rather, it simply requires that the offender was waiting for trial,

irrespective of whether trial has been formally set or an arraignment has been held.

Here, Sumlin/Brown had been served with the indictment and had notice that a trial

was forthcoming at the time he committed the offenses in Case

No. CR-23-685927-A. Sumlin/Brown’s interpretation of the statute would require

us to read limiting words and phrases into the statute that the General Assembly

could have, but chose not to, include. We decline to read words into the statute

where there are none. Maxwell, 2002-Ohio-2121, at ¶ 10. Finally, Sumlin/Brown contends that a grand jury indictment issued

in secret is not the same as “awaiting trial.” However, Sumlin/Brown’s indictment

was not a secret at the time he committed the offenses in Case No. CR-23-685927-A.

Rather, the indictment in CR-23-678291-A had been publicly docketed pursuant to

R.C. 2939.22 and Crim.R. 6(F); a summons with a copy of the enclosed indictment

was sent via certified mail to Sumlin/Brown’s address pursuant to Crim.R. 4(D)(3),

where it was served by the clerk in the manner prescribed by Civ.R. 4.1(A)(1)(a); and

the letter was received and signed for. As such, the indictment in Case

No. CR-23-678291-A was not a secret when Sumlin/Brown committed the offenses

in Case No. CR-23-685927-A.

After a thorough review of the record and applicable law, we find that

Sumlin/Brown was “awaiting trial” as contemplated by R.C. 2929.14(C)(4)(a) when

he committed the offenses charged in Case No. CR-23-685927-A. Sumlin/Brown

has failed to clearly and convincingly demonstrate that the record fails to support

the trial court’s findings necessary to impose consecutive sentences. Accordingly,

we overrule Sumlin/Brown’s sole assignment of error and affirm the judgment of

the trial court.

III. Conclusion

The trial court properly made the necessary findings in order to

impose consecutive sentences. Furthermore, since Sumlin/Brown committed the

offenses charged in Case No. CR-23-685927-A while “awaiting trial” in Case

No. CR-23-678291-A, we cannot find that the record does not clearly and convincingly support the trial court’s consecutive-sentence findings. We need not

consider Sumlin/Brown’s challenge to R.C. 2929.14(C)(b) because subsection (a) is

supported by the record. Accordingly, we affirm the sentences imposed by the trial

court.

Judgment affirmed.

It is ordered that appellee recover of 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 execution of sentence.

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

of the Rules of Appellate Procedure.

_________________________ MICHELLE J. SHEEHAN, JUDGE

EILEEN A. GALLAGHER, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR