State v. Travis

2021 Ohio 125

• Court: Ohio Court of Appeals
• Decided: January 21, 2021
• Docket: 109370
• Status: Published

Opinion

[Cite as State v. Travis, 2021-Ohio-125.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109370 v. :

LATRALE NELSON TRAVIS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 21, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-630311-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Allison Cupach, Assistant Prosecuting Attorney, for appellee.

Thomas A. Rein, for appellant.

LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant Latrale Nelson Travis (“Travis”) appeals from the

order imposing consecutive sentences for burglary and felonious assault. For the

reasons that follow, we affirm. {¶ 2} In 2019, Travis was charged with one count of aggravated burglary,

two counts of felonious assault, and one count of kidnapping involving two

unrelated incidents that occurred less than 30 minutes apart. Travis entered into a

plea deal with the state of Ohio and agreed to plead guilty to an amended count of

burglary and two counts of felonious assault. The trial court sentenced him to ten

years in prison, with three years of postrelease control.

{¶ 3} Travis appeals his sentence, raising the following assignment of error

for our review:

I. The trial court erred by ordering Appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.

Further facts will be discussed under the assignment of error.

{¶ 4} In his sole assignment of error, Travis contends that the trial court

erred in sentencing him to consecutive sentences because it failed to make the

requisite statutory findings.

{¶ 5} There are two ways a defendant can challenge consecutive sentences

on appeal. State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019-Ohio-1529,

¶ 15; State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 7. First,

the defendant can argue that consecutive sentences are contrary to law because the

trial court failed to make the findings required by R.C. 2929.14(C)(4). See R.C.

2953.08(G)(2)(b). Second, the defendant can argue that the record clearly and

convincingly does not support the findings made under R.C. 2929.14(C)(4). See

R.C. 2953.08(G)(2)(a). {¶ 6} To impose consecutive sentences, the trial court must find that (1)

consecutive sentences are necessary to protect the public from future crime or to

punish the offender, (2) consecutive sentences are not disproportionate to the

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

public, and (3) at least 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 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.

{¶ 7} R.C. 2929.14(C)(4). Only one of the three findings under R.C.

2929.14(C)(4)(a)-(c) must be made to support the imposition of consecutive

sentences. Id. The trial court must make the required statutory findings at the

sentencing hearing and incorporate those findings into its sentencing journal

entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

syllabus.

{¶ 8} To make the requisite findings under the statute, ‘“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.”’ Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). “[A]s

long as the reviewing court can discern that the trial court engaged in the correct

analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld.” Id. at ¶ 29. When considering

whether the trial court has made the requisite findings, an appellate court must

view the trial court’s statements on the record “in their entirety.” See, e.g., State v.

Blevins, 2017-Ohio-4444, 93 N.E.3d 246, ¶ 25 (8th Dist.).

{¶ 9} Travis contends that the trial court did not make the appropriate

findings to justify a consecutive sentence. Although the trial court was required to

make only one of the three findings in R.C. 2929.14(C)(4)(a)-(c), the trial court

found that all applied. Pursuant to R.C. 2929.14(C)(4)(a), the court found that

Travis committed the burglary and felonious assault while he was under

postrelease control for another case. Pursuant to R.C. 2929.14(C)(4)(b), the court

found that “a single term does not adequately reflect the seriousness of the

conduct,” basing its finding on the following:

[t]here are two victims that were assaulted by the defendant in June of 2018. Both of those victims were strangers to the defendant and the defendant was a stranger to them. Both of the victims were engaging in normal adult life behavior and not anticipating becoming victims of a violent offense. These incidents happened closely related in time, I think maybe 25 minutes apart.

{¶ 10} And, under R.C. 2929.14(C)(4)(c), the court found that consecutive

sentences were necessary to protect the public from future crime based on Travis’s criminal history. Finally, the trial court incorporated its findings into its journal

entry.

{¶ 11} An appellate court “may increase, reduce, or otherwise modify a

sentence” or it “may vacate the sentence and remand the matter to the sentencing

court for resentencing” if it “clearly and convincingly finds” that “the record does

not support the sentencing court’s findings” under R.C. 2929.14(C)(4). R.C.

2953.08(G)(2). ‘“Clear and convincing evidence is that measure or degree of proof

* * * which will produce in the mind of the trier of facts a firm belief or conviction

as to the facts sought to be established.”’ State v. Franklin, 8th Dist. Cuyahoga No.

107482, 2019-Ohio-3760, ¶ 29, quoting Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954), paragraph three of the syllabus. It is “an extremely deferential

standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th

Dist.).

{¶ 12} Travis does not argue that the record does not support consecutive

sentences; thus, he has waived all but plain error on review. Moreover, our review

of the transcript shows that his sentence is supported by the record. Travis, who

has a lengthy criminal record and was on postrelease control when he committed

the crimes in this case, brutally attacked two women who were strangers to him

and in unrelated incidents that occurred less than 30 minutes apart. The trial

court made all the requisite statutory findings and incorporated those findings into

its journal entry.

{¶ 13} In light of the above, the sole assignment of error is overruled. {¶ 14} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

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

27 of the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

EILEEN T. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR