STATE OF OHIO, Plaintiff-Appellee, v. JAMES W. JONES, Defendant-Appellant.
Nos. 110833 and 111020
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 23, 2022
[Cite as State v. Jones, 2022-Ohio-2133.]
FRANK DANIEL CELEBREZZE, III, P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-21-657235-A and CR-20-649028-A
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: June 23, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Michael Martinez, Assistant Prosecuting Attorney, for appellee.
Russell S. Bensing, for appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
{¶ 1} Appellant James W. Jones (“appellant“) brings this appeal challenging his 60-month prison sentence for charges of drug trafficking, possessing criminal tools, having weapons while under a disability, and physical control of a vehicle while under the influence. After a thorough review of the applicable law and facts,
I. Factual and Procedural History
{¶ 2} The charges against appellant stem from three different cases. The first case, Cuyahoga C.P. No. CR-20-649028, arose after the Cleveland Heights Police Department executed a search warrant at appellant‘s property. As a result of the search, the police located 72 THC marijuana vape pens, other vape pens in bags, two parcels from California containing vape pens, more than one pound of raw marijuana, and a loaded handgun.
{¶ 3} Appellant ultimately pled guilty to trafficking, in violation of
{¶ 4} In the second case, Cuyahoga C.P. No. CR-20-652376, appellant was found by police asleep in the driver‘s seat of his vehicle; the car was in “drive” and appellant‘s foot was on the brakes. Officers also observed a loaded handgun in the vehicle. The police searched appellant‘s vehicle and found powder that was determined to be a cutting agent for drugs, a scale, and $5,093.
{¶ 6} While these cases were pending, appellant was again arrested for being passed out in the driver‘s seat of his vehicle, resulting in the third case, Cuyahoga C.P. No. CR-20-657235. When Cleveland Heights police located appellant, he was seemingly intoxicated but refused a breathalyzer test. Appellant was indicted on two counts of driving under the influence, both felonies of the third degree. He ultimately pled guilty to one amended count of physical control of a vehicle while under the influence.
{¶ 7} The court held a sentencing hearing on all three cases and imposed an aggregate prison term of 60 months, stating as follows:
All of the counts will run concurrent except for Count 1 and Count 8 in Case No. 649028, those will run consecutive. And they will run consecutive because it‘s necessary to protect the public from future crime by you. As I said, 36 arrest cycles in 37 years of life. So and you‘ve done the same crimes over and over again. So I believe it‘s necessary to protect the public from future crime. And 60 months is not disproportionate to the crimes you have committed in this case, as well as you committed one or more of these offenses while you were already under arrest on a previous case, okay, so that‘s also important here.
Also, at least two or more of the multiple offenses were committed as part of one or more courses of conduct and, like I said, 60 months is not is not too much for the crimes committed and it adequately reflects the seriousness of your conduct. And of course, your criminal conduct has been atrocious. * * *
{¶ 8} With regard to CR-20-649028, the court stated as follows in its judgment entry:
{¶ 9} Appellant filed the instant appeal, raising two assignments of error for our review:
- The trial court‘s imposition of consecutive sentences was clearly and convincingly contrary to law.
- The trial court‘s imposition of consecutive sentences was clearly and convincingly unsupported by the record.
II. Law and Analysis
{¶ 10} We review felony sentences under the standard set forth in
{¶ 11}
(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 , 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.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 12} In appellant‘s first assignment of error, he argues that the trial court‘s imposition of consecutive sentences was clearly and convincingly contrary to law. Specifically, he contends that the court made only one of the three necessary findings under
{¶ 13} Conformity with
{¶ 14} In the instant matter, the trial court specifically stated that 60 months was not disproportionate to the crimes committed in the cases or the seriousness of appellant‘s conduct and that at least two of the offenses were committed as part of the same course of criminal conduct. In addition, the court explicitly stated that consecutive sentences were necessary to protect the public from future crime by appellant.
{¶ 15} Appellant contends that the trial court did not specifically say that the consecutive sentences were not disproportionate to the seriousness of appellant‘s conduct and to the danger he poses to the public.
{¶ 16} After reviewing the record, we cannot say that the record clearly and convincingly does not support the trial court‘s findings under
Even where a trial court omits a required consecutive sentencing finding from its sentencing journal entry, it is well established that the trial court‘s “inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law; rather, such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court.”
State v. Wilkins, 8th Dist. Cuyahoga No. 109368, 2021-Ohio-311, ¶ 17, quoting Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30. In this case, the trial court‘s failure to incorporate its findings under
{¶ 18} In appellant‘s second assignment of error, he argues that the imposition of consecutive sentences was unsupported by the record. Appellant acknowledges that he has had “brushes” with the law, but contends that these should be outweighed by the positive aspects of his life, including his compliance with court orders and work he has done for his community.
{¶ 19} As the Supreme Court of Ohio has explained, when reviewing consecutive sentences, ”
{¶ 20} At sentencing, the court heard from appellant and his counsel, who presented photographs depicting community involvement by appellant and submitted letters of support to the court. However, regardless of any good appellant has done in his community, when considering the crimes he has committed, the record supports the trial court‘s determination that appellant‘s actions and criminal history made him a danger to the public.
{¶ 21} In this case, the record reflects that appellant had had 36 arrest cycles in 37 years, several of which were related to drugs. As noted by the trial court, the amount of drugs involved in this case was greater than just personal use. Appellant also had multiple gun cases and was presently being sentenced on a case involving a gun. We cannot clearly and convincingly conclude that the record does not support the trial court‘s
{¶ 22} Thus, we find that the court did not err in imposing consecutive sentences, and appellant‘s second assignment of error is overruled.
III. Conclusion
{¶ 23} For all of the foregoing reasons, we find that the trial court made the requisite findings during the sentencing hearing under
{¶ 24} The matter is remanded to the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry that incorporates all of the consecutive-sentence findings, including the findings under
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR