STATE OF OHIO v. NICHOLAS FRANKLIN
No. 107454
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 19, 2019
2019-Ohio-3759
EILEEN T. GALLAGHER, P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-622587-C
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 19, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel A. Cleary, Assistant Prosecuting Attorney, for appellee.
Allison S. Breneman, for appellant.
EILEEN T. GALLAGHER, P.J.:
{¶ 1} Defendant-appellant, Nicholas Franklin (“Nicholas“), appeals from his sentence following a guilty plea. He raises the following assignment of error for reviеw:
- The trial court erred in imposing consecutive sentences.
I. Procedural and Factual History
{¶ 3} In November 2017, Nicholas and his codefendants, Holley Hentges and Malicke Franklin, were named in an eight-count indictment, charging them each with aggravated murder in violation of
{¶ 4} In June 2018, Nicholas entered into a plea agreement with the state. Following an extensive Crim.R. 11 colloquy, Nicholas pleaded guilty to involuntary manslaughter in violation of
{¶ 6} Nicholas also addressed the court. He accepted responsibility for his actions and apologized to the victim‘s family.
{¶ 7} The trial court then heard from the state and family members of C.F. Relevant to this appeal, the state disputed defense counsel‘s interpretation of Nicholas‘s involvement in C.F.‘s death. The state indicated that the three defendants entered the victim‘s homе without his consent and with the intent “to invoke serious physical harm that led to [C.F.‘s] death.” Regarding Nicholas, the state informed the court that “witnesses saw him punching and striking [C.F.] down in the lower area of his abdomen where two broken ribs were — his ninth and tenth rib[s] were broken.” The state explained that this was significant because “that‘s what ruptured the spleen thаt led to [C.F.] internally bleeding.” Thus, the state opined that Nicholas “basically did one of the death shots.” Finally, the state dismissed defense counsel‘s reference to Hentges‘s influence over Nicholas, stating “[Nicholas], who
{¶ 8} Upon consideration, the trial court sentenced Nicholas to nine years in prison on each count, to run consecutively, for an aggregate prison term of 18 years.
{¶ 9} Nicholas now appeals from his sentence.
II. Law and Analysis
{¶ 10} In his sole assignment of error, Nicholas argues the trial court erred by imposing consecutive sentences. He contends that thе trial court‘s imposition of maximum consecutive terms was “contrary to the felony sentencing guidelines.”
{¶ 11} We review felony sentences under the standard set forth in
{¶ 12}
(a) The оffender 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 postrelease 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.
(с) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 13} Compliance with
{¶ 15} Contrary to Nicholas‘s position on appeal, the trial court was not required to place facts on the record or state reasons in support of its consecutive sentence findings. State v. Johnson, 8th Dist. Cuyahoga No. 106450, 2018-Ohio-3670, ¶ 49, citing Bonnell at ¶ 37. Where the trial court made the requisite consecutive sentencing findings,
{¶ 16} After careful review of the record in its entirety, we find no basis to conclude that the record does not support the court‘s findings under
A man [was] beaten to death by three people in front of his fiancée and the other oсcupants of the home. * * * [The] three of you did it together, you‘re all equally responsible and that‘s the way the Court sees it.
{¶ 17} On this record, Nicholas has not demonstrated that the trial court‘s findings relied on facts that were demonstrably wrong. See State v. Perkins, 8th Dist. Cuyahoga Nos. 106877 and 107155, 2019-Ohio-88, ¶ 18; State v. Williams, 8th Dist. Cuyahoga No. 100488, 2014-Ohio-3138, ¶ 13. Instead, Nicholas merely reiterates the mitigation arguments that were previously raised befоre the court during the sentencing hearing. Thus, Nicholas‘s position seems to suggest that the trial court abused its discretion by not giving enough weight to the relevant factors he believes weigh heavily in favor of concurrent sentences. However,
{¶ 18} We note that Nicholas‘s lack of a criminal history did not render the imposition of consecutive sentences to be inappropriate in this case. As this court has previously explained, even where a defendant has no criminal history, consecutive sentences may be imposed if the court makes one of the alternative findings under
{¶ 19} The record further reflects that the trial court considered Nicholas‘s claims of remorse under
{¶ 20} Based on the foregoing, we cannot clearly and convincingly find that the record fails to support the trial court‘s findings under
{¶ 21} Nicholas‘s sole assignment of error is overruled.
{¶ 22} Judgment affirmed.
It is orderеd 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. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION
LARRY A. JONES, SR., J., DISSENTING:
{¶ 23} Respectfully, I dissent. The record in this case does not support the imposition of consecutive sentences.
{¶ 24} Our review of felony sentencing must be “meaningful.” See State v. Bratton, 6th Dist. Lucas Nos. L-12-1219 and L-12-1220, 2013-Ohio-3293, ¶ 8, citing State v. Carter, 11th Dist. Portage No. 2003-P-0007, 2004-Ohio-1181. In order to conduct a “meaningful review,” we are required to review the entire record, including any reports that were submitted to the court (i.e., a presentence, psychiatric or other investigative report), the trial record, and any statements made to or by thе court at sentencing. See
{¶ 26} Under
{¶ 27} The reasons the trial court gave with regard to the finding that “consecutive sentences are not disproportionate to the seriousness” of Niсholas‘s conduct and to the danger he poses to the public do not support this finding. One of the troubles I have with the sentences is in regard to the trial court‘s finding that a single prison sentence would not adequately reflect the seriousness of the crime. Involuntary manslaughter and aggravated burglary are, without debate, serious crimеs. The court found that all three defendants’ actions resulted in C.F.‘s death. This fact alone, however, has nothing to do with the relative seriousness of Nicholas‘s individual conduct in this case.
{¶ 29} Another trouble I have is with the trial court‘s findings that cоnsecutive sentences were necessary to protect the public from future crime by the defendants, and that consecutive sentences were not disproportionate to the danger Nicholas poses to the public. Implicit in those findings is a finding that, based on the defendant‘s prior criminal history, he is likely, if not incarcеrated to consecutive terms, to offend again. Nicholas, however, had no felony prior record.2 Thus, on this record, I cannot agree that there exists a need to impose consecutive sentences
{¶ 30} The record also does not support the finding that “the harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender‘s conduct.” Although the parties stipulated at sentencing that the two offenses were not allied offenses of similar import, the fact remains that the criminal conduct in which Nicholas engaged to help commit these two offenses occurred within a single episode. Moreover, as mentioned, both the state and the trial court acknowledged that Nicholas was present at the scene because of his mother and, if not for her, the crimes probably would have not occurred. Finally, while each offense Nicholas committed is serious, neither is made materially more serious by the particular conduct the other offense involves.
{¶ 31} Therefore, I clearly and convincingly find that imposition of consecutive sentences is disproportionate to the seriousness of the conduct in which Nicholas engaged when he committed these two offenses. Because the record does not support the trial court‘s finding on this issue, I would modify Nicholas‘s sentence to a conсurrent term.