State of Ohio, Plaintiff-Appellee, v. Ka-Juan F. Cardwell, Defendant-Appellant.
No. 15AP-1076
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 30, 2016
[Cite as State v. Cardwell, 2016-Ohio-5591.]
(C.P.C. No. 14CR-5203) (REGULAR CALENDAR)
Rendered on August 30, 2016
On brief: Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
On brief: Mark J. Miller, for appellant. Argued: Mark J. Miller.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{1} Defendant-appellant, Ka-Juan Cardwell, appeals from a judgment of the Franklin County Court of Common Pleas that imposed a sentence of 14 years incarceration following appellant‘s guilty plea to 7 counts of burglary without specifications. For the following reasons, we affirm the trial court judgment and remand the matter to that court for the limited purpose of entering a nunc pro tunc entry.
I. FACTS AND PROCEDURAL HISTORY
{2} On September 30, 2014, appellee, State of Ohio, indicted appellant on seven counts of burglary, one with an associated firearm specification, for incidents involving separate victims where appellant allegedly entered occupied residences and stole a vehicle, a gun, credit cards, and various other items. Appellant entered a guilty plea to all
{3} The trial court held a sentencing hearing on November 20, 2015. After hearing from the parties and 4 victims, the trial court imposed a 2-year prison sentence for each of the 7 counts of burglary and ran each sentence consecutively to each other for a total prison term of 14 years. Appellant filed a timely appeal to this court.
II. ASSIGNMENT OF ERROR
{4} Appellant assigns the following assignment as error:
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUIRED FINDINGS PURSUANT TO R.C. 2929.14(C)(4) DEPRIVING APPELLANT OF DUE PROCESS CONTRARY TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND CORRESPONDING RIGHTS UNDER THE OHIO CONSTITUTION.
III. DISCUSSION
{5} In his assignment of error, appellant contends that the trial court failed to make the requisite findings under
{6} “Under Ohio law, absent an order requiring sentences to be served consecutively, terms of incarceration are to be served concurrently.” State v. Sergent, __ Ohio St.3d __, 2016-Ohio-2696, ¶ 16, citing
(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} The Supreme Court of Ohio in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, established that, “[i]n order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{8} In determining whether the trial court engaged in the correct analysis, an appellate court “may liberally review the entirety of the sentencing transcript to discern whether the trial court made the requisite findings.” State v. Stephen, 7th Dist. No. 14 BE 0037, 2016-Ohio-4803, ¶ 22, citing Bonnell at ¶ 29. See, e.g., State v. Steiner, 5th Dist. No. 15CA17, 2016-Ohio-4648, ¶ 20-34 (citing to trial court‘s general sentencing findings to support a determination that the trial court made requisite findings under
{9} Appellant specifically argues here that the trial court failed to make the “disproportionality” finding and any of the three alternative findings under
{10} Appellee counters that no error occurred because, although the language used by the trial court was not direct, a review of the record shows the trial court nonetheless made the requisite findings. Appellee alternatively argues that the record shows that no plain error exists “when there is no probability of a different outcome,” while recognizing that this court‘s prior decisions establish that a trial court‘s failure to
{11} In the present case, at the sentencing hearing the trial court heard from the parties and four of the victims. At the outset, the trial court admonished appellant for testing presumptively positive for marijuana prior to coming to court. The trial court then proceeded to analyze general sentencing principles and factors. The trial court made a “general finding that the offender‘s conduct in this case is more serious than conduct normally constituting the offense,” based on the victims suffering serious physical, psychological, and economic harm as a result of the offense, appellant‘s relationship with the victims, appellant‘s commission of the offenses as a part of an organized criminal activity with a codefendant, and the fact that appellant committed the burglaries while people were present in the home, including, in some cases, children. (Tr. at 29.) The trial court did not find any factors under that statute indicating that appellant‘s conduct is less serious than conduct normally constituting the offense. The trial court additionally made a finding that factors indicating that appellant is likely to commit future crimes are present, including appellant‘s demonstrated pattern of marijuana use related to the offense and refusal in acknowledging his substance abuse issue, and appellant‘s lack of genuine remorse for the offenses. Although the trial court noted that the burglary offenses were his first adult convictions, the trial court did not find it is not likely that appellant will commit future crimes due to appellant‘s prior delinquency adjudication for truancy, the circumstances of the offenses, and appellant‘s lack of remorse. Considering the above, the trial court imposed a two-year sentence on each count, with the sentencing decision in part “based on [appellant‘s] unwillingness to acknowledge that [the] role that [appellant‘s] marijuana usage has played in the choices that [appellant] made throughout life.” (Tr. at 32.) The trial court further stated in pertinent part:
Pursuant to Revised Code Section 2929.14 Subsection C-4, because the court believes that no single sentence will satisfy this ongoing course of conduct and in order to ensure the safety of the community, the court is going to impose those
sentences consecutively with each other, for a total of 14 years of incarceration.
(Tr. 33-34.) Appellant did not object or otherwise call attention to the trial court‘s analysis under
{12} In its subsequent judgment entry, the trial court stated that it weighed the factors set forth in
The Court made findings on the record, pursuant to R.C. 2929.14(C)(4), to support consecutive sentences. Considering the facts of this case, the purposes and principals of sentencing, and the requirements set forth in R.C. 2929.14(C)(4), the Court finds that a consecutive sentence is both necessary and appropriate. The Court further finds that (a) a consecutive sentence is necessary to punish Defendant, given the seriousness of the offenses committed; (b) a consecutive sentence is not disproportionate to the seriousness of Defendant‘s conduct; (c) 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; and (d) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
(Judgment Entry at 2.)
{13} Having reviewed the record of the sentencing hearing, we conclude that the trial court engaged in an analysis which satisfies imposition of consecutive sentences pursuant to
{14} As to appellant‘s second argument regarding a lack of any of the alternative findings under
{15} While a finding under
{16} Furthermore, based on a careful review of the record, we do not clearly and convincingly find that the record fails to support the trial court‘s findings under
{17} Accordingly, we overrule appellant‘s sole assignment of error but remand the matter to the trial court to file a nunc pro tunc entry to correct the judgment entry to reflect the findings made at the sentencing hearing as provided above.
IV. CONCLUSION
{18} Having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas and remand the matter to that court for the limited purpose of entering a nunc pro tunc entry reflecting the
Judgment affirmed; cause remanded with instructions.
BROWN and KLATT, JJ., concur.