STATE OF OHIO v. LEE JONES
No. 104152
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 15, 2016
2016-Ohio-8145
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-14-590112-A
BEFORE: S. Gallagher, J., E.A. Gallagher, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: December 15, 2016
Ruth R. Fischbein-Cohen
3552 Severn Road #613
Cleveland, Ohio 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary Weston
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Appellant Lee Jones disagrees with the trial court‘s decision to impose his ten-year prison term on a single rape count to be served consecutive to four other rape convictions Jones is already serving. There is no error in Jones‘s sentence, and therefore, we affirm.
{¶2} The facts are relatively straightforward and undisputed. Jones approached a stranger on the street, struck the victim in the face, and dragged her around a corner to rape and further beat her. For this, Jones agreed to plead guilty to a single count of rape.
{¶3} This was not an isolated occurrence for Jones. In 1995, he was adjudicated delinquent for rape and remanded to the Ohio Department of Youth Services. In 2003, Jones was convicted of two separate rapes, leading to a five-year concurrent prison term. In 2007 and 2008, Jones was convicted of four rapes, each of a separate victim. That time, Jones was sentenced to ten years on each count to be served consecutive to each other. In this case, the trial court accepted Jones‘s guilty plea and sentenced him to ten years, to be served consecutive to the rest of his sentences.
{¶4} Jones advances three arguments: (1) that the
{¶5}
{¶6} Despite this extremely deferential standard, Jones asks this court to determine “whether it was necessary to give a maximum and consecutive sentence, even where prison might have been the only option.” The scope of consecutive-sentencing review provided in
{¶7} Within this framework, Jones contends that (1) the public needs no protection from Jones because he will be 69 years old when released from his previous aggregate prison term, and thus, the additional ten-year prison term serves no protective purpose; (2) the state failed to dеmonstrate that this particular rape involved more cruelty or unusual treatment than what is inherent in any other rape case; and (3) nothing in the record indicates that more than one act was committed. On all these points, although it could be debated whether the record sufficiently supports the findings, we cannot conclude that the record clearly and convincingly does not support the findings.
{¶8} Jones‘s third contention can be summarily rejected.
{¶9} Having said that, we reject Jones‘s first two contentions, which focus on the first and second findings in support of consecutive sentences, that consecutive sentences are necessary to protect the public from future crime and are not disproportionate to the offender‘s conduct. The crux of his argument rests with the misplaced belief that appellate review of consecutive sentence findings is guided by the
{¶10} The trial court in this case rejected Jones‘s view of the mitigating factors and found that keeping Jones off the street for ten additional years was necessary to protect the public because of his penchant for committing rapes against strangers. What Jones seeks is for an appellate panel to consider the sentencing factors a second time and give greater weight to the mitigating factors than the trial court had, presumably in reliance on thе Ohio Supreme Court‘s dicta that it is “fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in
{¶11} Allowing appellate review of sentences that are not contrary to law is seemingly at odds with the “unambiguous and definite” language of
{¶12} Further, this notion that appellate courts must review each of the
{¶13} Appellate courts could very well disagree with the sentence imposed; however, disagreement over debatable issues, such as the weight or importance of any one factor or finding, is not grounds to reverse thе consecutively imposed sentence under
{¶14} Even so, appellate courts cannot reweigh sentencing factors within the scope of reviеwing whether the record supports the consecutive-sentence findings. To begin with, it has been consistently maintained that a trial court need only consider the sentencing factors pursuant to
{¶15} Although the analogy may be simplistic, it can be said that the appellate court‘s role is to look at the forest while the trial court focuses on the trees. The appellate court looks at the record as a whole, in the сontext of the claimed error(s) and through the lens of a statutorily limited review, to ensure that the individual trees constituting the forest exist. It cannot be the role of the appellate court to reassess the weight the trial court gave to that evidence or information underlying a finding. That discretion lies with the trial court, and our review is not for an abuse of discretion. We are to give deference to the trial court‘s exercise of discretion and can statutorily vacate,
{¶16} Thus, our consecutive-sentencing review is limited to determining whether the record supports the findings actually made; it is not an invitation to determine or criticize how well the record supports the findings. Withrow, 2d Dist. Clark No. 2015-CA-24, 2016-Ohio-2884, at ¶ 37. Appellate courts are prohibited from substituting their judgment for that of the trial court because any such substitution would eviscerate the trial court‘s sentencing discretion. Id. It is one thing to reverse a conviction if the trial court finds the defendant‘s criminal history supported the imposition of consecutive sentences, but the defendant was a first-time offender. In that case, the record clearly and convincingly does not support the finding that the history of criminal conduct demonstrates the necessity of consecutive sentences. In addition, if the trial court mischaracterizes the history of criminal conduct (for instance, expressing its belief that consecutive service was necessary to protect the public because the offender has a history of violent offenses, when in fact the past conduct was limited to petty, nonviolent offenses), there may be grounds to determine that the consecutive findings are clearly and convincingly not supported by the record. On the other hand, if the defendant had a criminal record and the trial court simply referenced the general history of criminal conduct, but again the severity of that record is debatable because all prior conduct was petty and nonviolent, it is not incumbent upon an appellate court to reconsider the weight placed on the individual factors for the purpose of reviewing the trial court‘s finding,
{¶17} Moreover, this court has continuously applied the above principles in practice, and deferred to the trial court when the issue was the weight of the record in support of the consecutive-sentence findings. State v. Primm, 8th Dist. Cuyahoga No. 103548, 2016-Ohio-5237, ¶ 68 (after reciting the trial court‘s findings, the panel concluded in its entirety that “we cannot ‘clearly and convincingly’ find that the record does not support the court‘s findings.“); State v. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 11 (consеcutive service imposed on charges stemming from possession of child pornography was affirmed because the nature of the crime as charged reflects the severity of harm caused to the children depicted in the images); State v. Kessler, 8th Dist. Cuyahoga No. 82956, 2003-Ohio-6052, ¶ 16 (maximum consecutive
{¶18} Jones‘s age upon release from the prison terms he is currently serving was considered by the trial court, along with the nature of the crime committed against the victim. Although it is conceivable that some jurists could possibly debate the need to protect the public from what will be a 69-year-old serial rapist or whether the victim suffered more than was inherent in any other rape, that type of debate does not impact the determination of whether the record clearly and convincingly does not support the findings — although in this case it appears that the need to keep a serial rapist with no indicia of remorse behind bars for as long as possible is beyond question. Jones‘s request to reweigh the sentencing factors and give greater weight to mitigating ones in order to arrive at the conclusion that only concurrent service of his newest sentence is warranted, is not the type of appellate review contemplated within the ambits of
{¶19} Finally, we summarily overrule Jones‘s remaining two arguments, that consecutive service of his sentence amounts to cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution and that the trial court should have credited the days he served for his other sentences to his currеnt sentence. Neither argument is novel; both are premised on similar, overruled arguments.
{¶21} And in State v. DeMarco, 8th Dist. Cuyahoga No. 96605, 2011-Ohio-5187, ¶ 11, it was concluded that an offender cannot seek jail-time credit for time spent in confinement on unrelated matters. In this case, Jones was serving his prison terms in the unrelated cases pending the disposition of the underlying case. Jones essentially is seeking to count the time served on his aggregate term twice. Although such an argument is tenable when concurrent terms of prison are involved, the
{¶22} Having overruled Jones‘s two assigned errors, we affirm the conviction.
It is ordered that appellee recover from appellant costs herein taxed. The court finds there wеre 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 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 Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION; MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY
EILEEN A. GALLAGHER, P.J., CONCURRING WITH SEPARATE OPINION:
{¶23} I concur with the judgment of the majority opinion. I write separately to note my disagreement with paragraphs 10 and 11 of the majority opinion that I believe conflict with the legal analysis set forth in State v. Jones, 8th Dist. Cuyahoga Nos. 103290 and 103302, 2016-Ohio-7702, ¶ 100-108. Furthermore, I find the discussion in paragraphs 10 and 11 to be unnecessary and outside the scope of the present appeal.