STATE OF OHIO, Plаintiff-Appellee, v. RANDY CLAY, Defendant-Appellant.
No. 108500
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 16, 2020
2020-Ohio-1499
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 16, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-18-631797-A, CR-18-631963-B, and CR-18-632845-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Hannah Smith, Assistant Prosecuting Attorney, for appellee.
Brian A. Smith Law Firm, L.L.C., and Brian A. Smith, for appellant.
EILEEN T. GALLAGHER, A.J.:
{¶ 1} Defendant-appellant, Randy Clay, appeals from his sentence. He raises the following assignments of error for review:
- The trial court‘s imposition of consecutive sentences upon Clay was not supported by the record.
The record does not support the imposition of the nine-year prison sentence upon Clay.
{¶ 2} After careful review of the record and relevant case law, we affirm Clay‘s sentence.
I. Procedural and Factual History
{¶ 3} This appeal stems from Clay‘s participation in a series of separate burglaries that occurred at various apartment complexes located in Cleveland, Ohio.
{¶ 4} In Cuyahoga C.P. No. CR-18-631797-A, Clay was named in a six-count indictment, charging him with three counts of burglary in violation of
{¶ 5} In Cuyahoga C.P. No. CR-18-631963-B, Clay was named in an eight-count indictment, charging him with three counts of theft in violation of
{¶ 6} In Cuyahoga C.P. No. CR-18-632845-A, Clay was named in a two-count indictment, charging him with burglary in violation of
{¶ 7} A consolidated plea hearing was held in February 2019. At the onset of the hearing, defense counsel expressed that Clay wished to accept a negotiated plea agreement with the state that encompassed all three cases. Pursuant to the
{¶ 8} Prior to accepting Clay‘s plea, the trial court engaged Clay in the necessary
{¶ 9} Upon accepting Clay‘s guilty plea, the trial court found Clay guilty of the offenses and referred him to the Adult Probation Department for the completion of a presentence investigation and report (“PSI report“).
{¶ 10} A consolidated sentencing hearing was held in March 2019. Clay spoke on his own behalf. He expressed remorsе for his involvement in the crimes and indicated that he has “a very bad drug addiction.” Defense counsel also spoke on Clay‘s behalf. Counsel outlined Clay‘s “severe drug use” and indicated that Clay‘s participation in the string of burglaries was “fueled by his relapse and need
{¶ 11} After reviewing the PSI report, hearing from Clay, his counsel and the state, the trial court sentenced Clay to 36 months in prisоn on each burglary offense in Case No. CR-18-631797-A, to run concurrently to each other, but consecutive to the prison terms imposed in Case Nos. CR-18-631963-B and CR-18-632845-A. In Case No. CR-18-631963-B, the trial court sentenced Clay to 36 months in prison on each burglary offense, to run concurrently to each other, but consecutive to the prison terms imposed in Case Nos. CR-18-631797-A and CR-18-632845-A. In Case No. CR-18-632845-A, the trial court sentenced Clay to 36 months in prison on his burglary offense, to run consecutive to the prison term imposed in Case No. CR-18-631963-B. Thus, Clay was ordered to serve an aggregate nine-year prison term. In addition, the trial court ordered Clay to pay restitution in an amount totaling $1,616.77.
{¶ 12} Clay now appeals from his sentence.
A. Consecutive Sentences
{¶ 13} In his first assignment of error, Clay argues the trial court‘s impоsition of consecutive sentences was not supported by the record.
{¶ 14} We review felony sentences under the standard set forth in
{¶ 15}
- The offender committed one or more of the multiрle offenses while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense. - 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.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences arе necessary to protect the public from future crime by the offender.
{¶ 16} Compliance with
{¶ 17} Whеre the trial court made the requisite consecutive sentencing findings,
Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderаnce 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, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 18} In this case, the trial court made the following statement on the record:
The Court makes the following findings with reference to his sentencing. The Court does find that consecutive sentences are necessary to protect the public from future crime; that consecutive sentences are necessary to punish the offender; that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct; that consecutive sentences are not disproportionate to the danger the offender poses to the public. And the Court finds that the offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the оffender.
{¶ 19} On appeal, Clay concedes that the trial court made the necessary findings for imposing consecutive sentences under
It is also important to understand that the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negativе. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court‘s findings. In other words, the restriction is on the appellate court, not the trial judge.
{¶ 21} In this case, the offenses committed by Clay invоlve a series of burglaries of apartment complexes over a period of two months. Clay‘s PSI report reflects that Clay stole various pieces of property from the apartment complexes, including numerous televisions, a weed trimmer, four or five Federal Express mail packages, and a generator. In the рrocess of facilitating these crimes, Clay caused structural damage to several of the properties. In addition, the record reflects that the offenses occurred while Clay was “under Adult Parole Authority supervision.” Clay has an extensive criminal record, including numerous adult convictions for similar property-related offenses, spanning from 1997 to 2016. In fact, the record reflects that Clay was convicted of at least one felony or misdemeanor offense in each of the following years: 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2005, 2006, 2007, 2009, 2010, 2011, 2015, and 2016. Most recently, Clay was convicted
{¶ 22} Under the totality of these circumstances, we are unable to clearly and convincingly find the record does not support the trial court‘s findings under
{¶ 23} Clay‘s first assignment of error is overruled.
B. Purposes and Principles of Felony Sentencing
{¶ 24} In his second assignment of error, Clay argues that “[his] sentence, the maximum term of imprisonment on each count, with the sentences in each case ran consecutively to one another, was not supported by the record.” Relying on relevant sentencing factors set forth under
{¶ 25} Initially, we note that, to thе extent Clay relies on the
While
R.C. 2953.08(G)(2)(a) clearly applies to consecutive-sentencing review,R.C. 2929.11 and2929.12 both clearly apply only to individual sentences.R.C. 2929.11 speaks in terms of a court imposing “a sentence” for “a felony.” Likewise,R.C. 2929.12(A) speaks in terms of a court imposing “a sentence” for “a felony.” This language is consistent with our precedent establishing that “[a] sentence is the sanction or combination of sanctions imposed for each separate, individual offense.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph one of the syllabus. Consecutive service may not be ordered underR.C. 2929.14(C)(4) until the sentencing judge imposes a prison term for each individual count, and the judge must first impose a sentence for each count by considering the purposes and principles of felony sentencing underR.C. 2929.11 and2929.12 .
Id. at ¶ 17. Thus, our consideration of the court‘s compliance with the mandates of
{¶ 26} A sentence is contrary to law if it falls outside the statutory range for the particular degree of offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{¶ 27} Applying the foregoing, courts have “refused to find that a sentence is contrary to law when the sentence is in the permissible range and the court‘s journal entry states that it ‘considered all required factors of the law’ and ‘finds that prison is consistent with the purposes of
{¶ 28} Under
{¶ 29} Furthermore, in imposing a felony sentence, “the court shall consider the factors set forth in [
{¶ 31} Relevant to this appeal, this court has previously explained that:
“‘The weight to be given to any one sentencing factor is purely discretionary and rests with the trial court.‘” State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶ 20, quoting State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10, citing State v. Torres, 8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11. A lawful sentence “‘cannot be deemed contrary to law because a defendant disagrees with the trial court‘s discretion to individually weigh the sentencing factors. As long as the trial court considered all sentencing factors, the sentence is not contrary to law and the appellate inquiry ends.‘” Price at id., quoting Ongert at ¶ 12.
State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 15.
{¶ 32} In this case, the record demonstrates that the trial court imposed individual prison terms within the applicable statutory ranges and expressed in each sentencing journаl entry that it considered all required factors of law and found Clay‘s sentence to be consistent with the purposes of
{¶ 33} While Clay‘s remorse and need for substance abuse treatment are relevant and substantial factors, so too are the factors correlаting to the economic harm suffered by the victims, Clay‘s commission of the offenses while under the
{¶ 34} Clay‘s second assignment of error is overruled.
{¶ 35} Judgment affirmed.
It is ordered that appellee recover from appеllant 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 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.
EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE
LARRY A. JONES, SR., J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY