State v. CurtisState v. Curtis
(Criminal Appeal from Common Pleas Court)
OPINION
Rendered on the 20th day of May, 2022.
MATTHEW C. JOSEPH, Atty. Reg. No. 0090869, Miami County Prosecutor‘s Office, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
KYLE J. LENNEN, Atty. Reg. No. 0085726, 120 West Second Street, Suite 820, Dayton, Ohio 45402 Attorney for Defendant-Appellant
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} On November 9, 2020, a complaint was filed in the Miami County Municipal Court charging Curtis with two second-degree-felony counts of felonious assault. After the complaint was filed, Curtis waived his right to a preliminary hearing and the matter was bound over to the Miami County Court of Common Pleas. Once the matter was bound over, Curtis waived his right to be prosecuted by indictment. The State thereafter filed a bill of information charging Curtis with one count of felonious assault in violation of
{¶ 3} On January 22, 2021, Curtis pled guilty as charged in the bill of information. The trial court accepted Curtis‘s guilty plea and thereafter sentenced Curtis to an indefinite term of 6 to 9 years in prison for the felonious assault and a definite term of 16 months in prison for the aggravated assault. After considering the statutory criteria under
{¶ 4} Curtis now appeals from his conviction, raising two assignments of error for review.
First Assignment of Error
{¶ 5} Under his first assignment of error, Curtis contends that the trial court improperly imposed consecutive sentences based on his history of criminal conduct. We disagree.
{¶ 6} When reviewing felony sentences, appellate courts must apply the standard of review set forth in
{¶ 7} Pursuant to
- 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 , or2929.18 of the Revised Code, or was under post-release 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 are necessary to protect the public from future crime by the offender.
{¶ 8} “[A] trial court is required to make the findings mandated by
{¶ 9} In this case, Curtis does not dispute that the trial court made the statutorily-required consecutive-sentence findings at the sentencing hearing and incorporated them into the sentencing entry. Instead, Curtis challenges the trial court‘s finding under section (c) of
{¶ 10} In support of his claims, Curtis cites to a decision of the Eighth District Court of Appeals, State v. Batiste, 2020-Ohio-3673, 154 N.E.3d 1220 (8th Dist.). In Batiste, the trial court imposed consecutive sentences for various offenses committed by the defendant and relied on two factors when making its history-of-criminal-conduct finding: (1) the defendant‘s prior juvenile adjudication for robbery; and (2) the criminal conduct for which the defendant was being sentenced. Id. at ¶ 18. On appeal, the Batiste court held that the trial court had erroneously relied on the criminal conduct that the defendant was being sentenced for when making its history-of-criminal-conduct finding, as the court explained that said finding “does not include the offenses of the case at issue.” Id. at ¶ 19, citing State v. Green, 8th Dist. Cuyahoga No. 102421, 2015-Ohio-4078, ¶ 17, and State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, ¶ 46. The court in Batiste also held that the “use of an offender‘s juvenile criminal history is generally reserved for instances where the offender has an extensive juvenile history.” (Emphasis sic.) Id. at ¶ 20. Because the defendant in Batiste only had one juvenile adjudication for robbery, the Eighth District found that the record did not support the trial court‘s history-of-criminal-conduct finding and thus did not support the imposition of consecutive
{¶ 11} Curtis contends that, like Batiste, the trial court in this case based its history-of-criminal-conduct finding on a single juvenile adjudication and his criminal conduct in the instant case. The record, however, establishes otherwise. Unlike the defendant in Batiste, Curtis‘s history of criminal conduct included more than just a single juvenile adjudication and the instant criminal offenses. The record establishes that Curtis had juvenile adjudications for assault in 2010 and underage consumption of alcohol and drugs in 2011. Curtis also had adult misdemeanor convictions for criminal damaging in 2015 and disorderly conduct in 2017, with the disorderly conduct conviction being amended from an original charge of resisting arrest. Between 2010 and 2012, Curtis acquired several charges as a juvenile for failure to comply, obstructing official business, and assault, all of which were dismissed. As an adult, Curtis was also charged with obstructing official business and possession of controlled substances in 2013, with those charges being dismissed as well. In addition, at the time of sentencing, Curtis had a pending charge for aggravated menacing that arose after he committed the offenses in this case. The record indicates that the aggravated menacing charge stemmed from allegations that Curtis threatened to kill the son-in-law of the victim‘s neighbor, who had tried to stop Curtis from punching the victim during the incident in question.
{¶ 12} We note that “[b]y referring to the offender‘s history of criminal conduct,
{¶ 13} In addition to the aforementioned juvenile adjudications, misdemeanor convictions, and charges, when making the history-of-criminal-conduct finding, the trial court considered the instant felonious assault and aggravated assault offenses. In this court‘s view, “history of criminal conduct” includes all criminal conduct the offender engaged in prior to sentencing. The language of
{¶ 14} Even without considering the instant felonious assault and aggravated assault offenses, the record indicates that within a span of 10 years Curtis consistently engaged in violent or non-compliant conduct, which resulted in his acquiring multiple charges, juvenile adjudications, and misdemeanor convictions. Therefore, we do not clearly and convincingly find that the record fails to support the trial court‘s history-of-criminal-conduct finding. For this reason, Curtis‘s claim that the trial court improperly
{¶ 15} That said, Curtis also claims that the trial court made a factually inaccurate statement in the sentencing entry with regard to the history-of-criminal-conduct finding. Specifically, Curtis points to a portion of the sentencing entry in which the trial court stated that Curtis had “served three prior prison terms and committ[ed] the instant offenses while on community control.” Sentencing Entry (Mar. 12, 2021), p. 4. The State concedes that the foregoing statement is incorrect, but claims that the statement was merely a clerical mistake.
{¶ 16} In support of this claim, the State points to the transcript of the sentencing hearing, which establishes that the trial court never considered or mentioned Curtis‘s being on community control during the offenses in question and specifically stated that: “in mitigation [Curtis has] not served any previous prison term.” Sentencing Trans. (Mar. 8, 2021), p. 25. The trial court also wrote in the sentencing entry that: “While the defendant does not have any prior felony convictions or non-compliance, he was adjudicated as a juvenile and all of his prior convictions as a juvenile and as an adult, involve violence.” (Emphasis added.) Sentencing Entry at 3. This statement indicates, and the record establishes, that all of Curtis‘s adult convictions were for misdemeanor offenses. Generally speaking, jail terms, not prison terms, are imposed for misdemeanor offenses.
{¶ 18} For the foregoing reasons, Curtis‘s first assignment of error is overruled as to the imposition of consecutive sentences and sustained as to the incorrect statement in the sentencing entry.
Second Assignment of Error
{¶ 19} Under his second assignment of error, Curtis contends that the indefinite term of 6 to 9 years in prison he received for felonious assault and the definite term of 16 months in prison he received for aggravated assault are excessive given that he is a first-time felony offender. Specifically, Curtis argues that his prison sentences do not comport with
{¶ 20} As previously noted, this court must apply the standard of review contained in
{¶ 21} “A sentence is not clearly and convincingly contrary to law where the trial court ‘considers the principles and purposes of
{¶ 22} “[N]either
{¶ 23} In this case, the transcript of the sentencing hearing and the sentencing entry establish that the trial court considered the principles and purposes of felony sentencing set forth in
{¶ 24} This ends our inquiry regarding Curtis‘s prison sentence, as ” ‘[n]othing in
{¶ 25} Because Curtis‘s prison sentences are not contrary to law, his second assignment of error is overruled.
Conclusion
{¶ 26} The judgment of the trial court is affirmed, but the matter is remanded to the trial court for the sole purpose of issuing a nunc pro tunc sentencing entry that accurately reflects the history-of-criminal-conduct findings that the trial court made at the sentencing hearing.
EPLEY, J. and LEWIS, J., concur.
Copies sent to:
Matthew C. Joseph
Kyle J. Lennen
Hon. Stacy M. Wall