STATE OF OHIO, PLAINTIFF-APPELLEE vs. ANDY GRAY, DEFENDANT-APPELLANT
No. 98970
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 23, 2014
2014-Ohio-4668
BEFORE: Rocco, J., S. Gallagher, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-552785
Robert L. Tobik
Cuyahoga County Public Defender
By: Erika B. Cunliffe
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy E. Venesile
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Andy Gray appeals frоm the sentences the trial court imposed on him after he pleaded guilty to assault, attempted failure to comply, and drug trafficking.
{¶2} Gray presents a singlе assignment of error, arguing that the trial court failed to make the necessary statutory findings to impose consecutive prison terms. Gray also argues that
{¶3} Based upon a review of the record in light of the Ohio Supreme Court‘s deсision in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E. 3d 659, Gray‘s arguments lack merit; therefore, his assignment of error is overruled. Gray‘s sentence is affirmed, but this case is remanded for the limited purpose of having the trial court incorporate, nunc pro tunc, its consecutive-sentence findings in the sentencing entry.
{¶4} Gray was indicted in this case on seven counts. He was сharged with two counts of felonious assault on a peace officer, one count of failure to comply with a furthermore clause that he сaused a substantial risk of serious physical harm, one count of tampering with evidence, one count of trafficking in heroin, one count of possession of heroin, and one count of possessing criminal tools. The last three counts each contained several forfeiture specifications.
{¶6} When the trial court called Gray‘s case for sentencing, the court indicated it had read the presentence report as well as an “Ohio Offender Risk Assessment” and a written victim impact statement that had been created. In the latter, one of the police officers “explained that he had received cuts to his hands” in the incident, and that he and his partner “could easily have been seriously injured when Mr. Gray fled in his vehicle.” The officer further opined that Gray “put city residents at risk when he sped off through the crowded parking lot, ran a stop sign, almost struck oncoming vehicles, [and] jumped out of a moving vehicle.”
{¶7} The trial court also considered the arguments of counsel, the victims’ oral statements, Gray‘s statement, and Gray‘s criminal record. The trial court then described the circumstances surrounding the incident, and quoted statistics about the devastation caused by heroin. The trial court nоted that, by trafficking in heroin, Gray had “become a person who helps murder people” with it. Referring to “assault on peace officers,” “not obеying police orders,” and “major heroin trafficking,” the court asked Gray if he
{¶8} The trial court then stated:
THE COURT: Anyway, here‘s what we‘re going to do. I‘m going to elect to hand out consecutive sentences today and it may well be justified by the statute we‘re operating undеr,
2921.331 , but independent of that, I have the power to hand out consecutive sentences and I‘ve consultedR.C. 2929.14 relative to when I can hand out consecutive sentences and those findings have always suggested that this is necessary to protect the public and punish the offender, and that without going to consecutive sentences, there just isn‘t sufficient punishment. So all the things we‘ve been talking about today are part of the findings that I have to justify consecutive sentences.
(Emphasis added.)
{¶9} The trial court thereupon imposed consecutive prison terms of five years for the attempted failure to comply charge, one year for the assault charge, and one year for the drug trafficking charge.
{¶10} Gray presents a single assignment of error, which states:
- The trial court violated Mr. Gray‘s right tо due process and imposed a sentence contrary to law when it ordered consecutive sentences without stating reasons therefore [siс] and making findings the law requires.
{¶11} In his assignment of error, Gray asserts that the trial court failed to comply with
{¶12} The Ohio Supreme Court held as follows in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E. 3d 659, at the syllabus:
In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.
{¶13} Thus,
{¶14} With respect to Gray‘s conviction for attempted failure to comply, in State v. Garner, 8th Dist. Cuyahoga Nоs. 97948 and 97949, 2012-Ohio-3262, ¶ 18, this court held that a trial court errs in determining that it is mandated to impose a consecutive prison term pursuant to
{¶15} However, the trial court in this case imposed consecutive terms pursuant to
{¶16} In Bonnell, the Supreme Court put forward a less strict standard than the one this court adopted in State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527. In this case, the trial court stated that consecutive service was necessary to punish Gray. Although the trial court did not specifically state that the sentence is “not disproportionate to the seriousness of” Gray‘s conduct and the danger he poses to the public, in light of the trial court‘s comments, to reverse and remand in this case would be tantamount to merely requiring the “magic” words, an approach that Bonnell rejected. Greene, fn. 1.
{¶18} Because the trial court complied with the less strict standard of review set forth in Bonnell, Gray‘s assignment of error is overruled. Nevertheless, Bonnell requires that the trial court not only make the statutory findings to impose consecutive sentences, but that the court also incorporate those findings into its sentencing entry. Id. at syllabus. The Bonnell court stated that the trial court‘s failure to do so is a clerical mistake and does not render the sentence contrary to law, therefore, the omission “may be corrected * * * through a nunc pro tunc entry to reflect what actually occurred in open court.” Id. at ¶ 30, citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15.
{¶19} In light of Bonnell, although Gray‘s sentences are affirmed, this case is remanded for the limited purpose of having the trial court incorporate, nunc pro tunc, its consecutive-sentence findings in the sentencing entry.
{¶20} Sentences affirmed. Case remanded.
The court finds there were reasonable grounds for this appеal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remаnded to the trial court for further proceedings consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
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KENNETH A. ROCCO, JUDGE
SEAN C. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR