State v. ColeState v. Cole
Eric J. Allen for Appellant
Alice Robinson-Bond for Appellee
{¶1} Defendant-appellant, Michael W. Cole, Jr. (“Cole“), appeals the May 16, 2018 judgment entry of sentence of the Logan County Court of Common Pleas. For the reasons that follow, we affirm the conviction and sentence of the trial court and remand to the trial court so it can amend its sentencing entry via a nunc pro tunc order to properly include the trial court‘s consecutive-sentence findings.
{¶2} This case arises from a December 5, 2017 incident in which Cole allegedly hit his live-in girlfriend, Kerri Emrick (“Emrick“), with a belt, grabbed her by the neck, forced her to the ground, and hit the cell phone out of her hand when she attempted to call the police. (Apr. 6, 2018 Tr. at 11-12). (See Doc. No. 29). When J.E., Emrick‘s 13-year-old son, came to his mother‘s aid, Cole allegedly hit him as well. (Apr. 6, 2018 Tr. at 11-12). (See Doc. No. 29). After Cole was arrested, he allegedly became aggressive and noncompliant with six separate law enforcement officers culminating in officers deploying pepper spray on Cole and placing him into a restraint chair. (Apr. 6, 2018 Tr. at 11-12). (See Doc. No. 29).
{¶3} On December 12, 2017, the Logan County Grand Jury indicted Cole on six counts: Counts One and Two of domestic violence in violation of
{¶4} On April 6, 2018, under a negotiated plea agreement, Cole withdrew his pleas of not guilty and entered guilty pleas to Counts One and Four. (Doc. No. 39). In exchange, the State agreed to dismiss Counts Two, Three, Five, and Six. (Id.). The trial court accepted Cole‘s guilty pleas, found him guilty, and ordered a presentence investigation. (Id.). The trial court also dismissed Counts Two, Three, Five, and Six. (Id.). On April 17, 2018, the trial court filed its judgment entry of conviction. (Id.).
{¶5} On May 15, 2018, the trial court sentenced Cole to 15 months in prison on Count One and 9 months in prison on Count Four to be served consecutively for an aggregate term of 24 months’ imprisonment. (Doc. No. 42). On May 16, 2018, the trial court filed its judgment entry of sentence. (Id.).
{¶6} Cole filed his notice of appeal on May 31, 2018. (Doc. No. 50). He raises one assignment of error.
Assignment of Error
The record in this matter does not support the imposition of consecutive sentences pursuant to state law
{¶8} “Under
{¶9} “Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of
(4) * * * [T]he 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 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.
{¶10}
{¶11} The trial court must state the required findings at the sentencing hearing when imposing consecutive sentences and incorporate those findings into its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A trial court “has no obligation to state reasons to support its findings” and is not “required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.” Bonnell at ¶ 37.
{¶13} The trial court made the three statutorily required findings at the sentencing hearing. Specifically, at the sentencing hearing, the trial court said:
The Court finds that consecutive sentences are appropriate, so. [sic] Count I and Count IV will be served consecutive to one another. These are necessary to punish you and to otherwise protect the public from your potential future crimes. They‘re not disproportionate to the seriousness of your conduct, and as I have indicated repeatedly, you were on community control at the time that this offense was committed and a single prison term would simply not adequately reflect the seriousness of your conduct. I further find that your criminal history demonstrates that consecutive sentences are in fact necessary to protect the public.
{¶14} The trial court incorporated its findings into its sentencing entry as follows:
The Court finds that consecutive sentences are necessary to protect the public from future crime and/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. 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.
(Doc. No 42). Thus, although the trial court made findings as to both
{¶15} With regard to
{¶16} However, the trial court‘s finding that Cole was under community control at the time he committed the subject offenses is not a valid basis to impose consecutive sentences under
{¶17} Although the record does not support a finding under
{¶18} At the sentencing hearing, the trial court reviewed the PSI and Cole‘s criminal record going back to 1993 and noted that Cole consistently reoffended when on post-release control, community control, or when subject to other criminal sanctions. (May 15, 2018 Tr. at 11-13). (See PSI at 4-5). The trial court also found that the instant case marks Cole‘s sixth felony conviction, that he has prior convictions for assault and domestic violence, and that Cole is “a danger to society.” (May 15, 2018 Tr. at 16). (See PSI at 4-5). Finally, the trial court stated that it was “particularly concerned about * * * the defendant‘s prior criminal history” as
{¶19} Only one finding under
{¶20} Additionally, the trial court found that the consecutive sentences are necessary to protect the public or punish the offender and that consecutive sentences would not be disproportionate to the offense committed. Thus, the trial court satisfied the requirements of
{¶21} Therefore, there is not clear and convincing evidence that Cole‘s sentences are unsupported by the record or that his sentences are otherwise contrary to law. See Nienberg, 2017-Ohio-2920, at ¶ 23.
{¶23} Here, the trial court did make the appropriate statutory findings under
{¶24} Cole‘s assignment of error is overruled.
{¶25} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the conviction and sentence of the trial court and remand so the trial court can amend its sentencing entry via a nunc pro tunc order to include the trial court‘s consecutive-sentence findings.
Judgment Affirmed and Cause Remanded
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.