STATE OF OHIO v. WALI KAMAL
No. 109781
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 1, 2021
[Cite as State v. Kamal, 2021-Ohio-2261.]
FRANK D. CELEBREZZE, JR., J.
Criminаl Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-644213-A
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: July 1, 2021
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Marcus A. Henry, Assistant Prosecuting Attorney, for appellee.
Allison S. Breneman, for appellant.
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant Wali Kamal brings this appeal challenging his eight-year prison sentence for two counts of gross sexual imposition. Appellant argues that the trial court erred in imposing consecutive sentences. After a thorough review of the record and law, this court affirms appellant‘s sentence but remands
I. Factual and Procedural History
{¶ 2} The instant matter arose from an ongoing sexually abusive relationship between appellant and the victim in this case, M.R. Although appellant abused the victim for more than one year, this appeal pertains to an incident that occurred on September 14, 2019. At the time, the viсtim was 12 years old, and appellant was in a relationship with the victim‘s mother.1
{¶ 3} The victim alleged that appellant came into her bedroom and ordered her to come downstairs. According to the Cleveland Police Department‘s Case Information Form, appellant threatened that the victim would be “homeless on the strеet” if she did not come downstairs with him. Appellant proceeded to sexually assault the victim in the living room. He kissed the victim‘s face, lifted her shirt, touched and sucked her breasts, and touched her buttocks. The victim, who was 12 years old at the time, told appellant no and to stop, but he did not comply. When the victim disclosed the abuse to her cousins in 2019, she alleged that she had been sexually abused for more than one year.
{¶ 4} On September 30, 2019, in Cuyahoga C.P. No. CR-19-644213-A, a Cuyahoga County Grand Jury returned a four-count indictment charging appellant
{¶ 5} The parties reached a plea agreement during pretrial proceedings. Under the plea agreement, Counts 1 and 2 were amended to add the name of the victim, M.R. On February 10, 2020, appellant pled guilty to Counts 1 and 2, as amended. Counts 3 and 4 were nolled. The trial court ordered a presentence investigation report and set the matter for sentencing.
{¶ 6} The trial court held a sentencing hearing on March 16, 2020. The trial court sentenced appellant to a prison term of eight years: four years on each gross sexual imposition count, to run consecutively with one another. The trial court classified appellant a Tier II sex offender and reviewed appellant‘s reporting requirements.
{¶ 7} On June 23, 2020, appellant filed the instant appeal challenging his eight-year prison sentence. Appellant assigns one error for review:
II. Law and Analysis
{¶ 8} In his sole assignment of error, appellant argues that the trial court erred in imposing consecutive sentences.
{¶ 9} We review felony sentences under the standard set forth in
{¶ 10}
(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.
{¶ 11} Conformity with
{¶ 12} In the instant matter, appellant concedes that the trial court made the required
{¶ 13} In making the second finding under
{¶ 14} Although the trial court did not explicitly find that consecutive sentences were not “disрroportionate to the seriousness of [appellant‘s] conduct and to the danger [appellant] poses to the public,” the trial court was not required to recite the statutory language verbatim, and the trial court‘s statements during the sentencing hearing, when viewed in their entirety, clearly indicate that the trial court considered proportionality with respect to both the seriousness of appellant‘s conduct and the danger appellant posed to the public. See State v. Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 23; see also State v. McGowan, 8th Dist. Cuyahoga No. 105806, 2018-Ohio-2930, ¶ 19-25 (the trial court‘s failure to explicitly make the proportionality finding did not preclude the imposition of consecutive sentences where the trial court‘s statements during the sentencing hearing, when viewed in their entirety, indicated that the court considered proportionality both with regard to the seriousness of defendant‘s conduct and the danger he posed to the public); State v. Morris, 2016-Ohio-7614, 73 N.E.3d 1010, ¶ 27-34 (8th Dist.) (the proportionality finding could be discerned from the record); State v. Amey, 8th Dist. Cuyahoga Nos. 103000 and 103001, 2016-Ohio-1121, ¶ 15-19 (the trial court‘s statement that consecutive sentences “would not be disproportionate” combined with statements regarding defendant‘s extensive criminal history and the trial
{¶ 15} In the instant matter, like Amey, the trial court stated that appellant “had not done well on probation with prior domestic violence cases, and the Court sees absolutely no reason that [appellant] should be afforded an opportunity on community control sanctions.” (Tr. 94.) As noted above, appellant does not challenge the sufficiency or adequacy of the trial court‘s proportionality finding, and we decline to construct an argument on appellant‘s behalf.
{¶ 16} Regarding the third finding, the trial court determined that
the harm was so great or unusual a single sentence does not adequately reflect the seriousness of your conduct.
***
Your criminal history shows that consecutive terms are needed to protect the public as well.
(Tr. 95-96.)
{¶ 17} Accordingly, the record reflects that the trial court made thе requisite findings during the sentencing hearing under
{¶ 18} The trial court incorporated the first, second, and third consecutive sentence finding under
[t]he court imposes prison terms consecutively finding that consecutive service of the prison term is necessary to protect the рublic from future crime or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant‘s conduct and to the danger defendant poses to the public; and that, defendant‘s history of criminal conduct demonstrates that consecutive sentences are necessаry to protect the public from future crime by defendant.
{¶ 19} Although the trial court found at the sentencing hearing that
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 mаking 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.”
{¶ 20} In challenging the trial court‘s imposition of consecutive sentences, appellant argues that the trial court‘s consecutive sentence findings are not supported by the record or the underlying facts. Appellant challenges the triаl court‘s first and second findings under
{¶ 21} Specifically, appellant argues that “[a] concurrent term would have adequately punished [him] and protected the community after considering the facts of the case,” and that consecutive sentences are “clearly disproportionate to the crimes committed[.]” Appellаnt‘s brief at 4-5. In support of his argument that there is no factual basis for imposing consecutive sentences, appellant emphasizes that he was an alcoholic, he did not touch the victim‘s vagina, he did not force the victim to touch him, and he was “deeply remorseful” at sentencing. Appellant‘s brief at 6.
{¶ 22} Regarding the third finding, appellant appears to argue that
{¶ 23} After reviewing the record, we cannot say that the record clearly and convincingly does not support the trial court‘s findings under
{¶ 24} The prosecutor emphasized that appellant was a parental figure to the victim, and that appellant exploited this relationship in perpetrating the offenses. The prosecutor stated that appellant threatened the victim that if she did not engage in sexual activity with him, he would leave the home and no longer provide the financial contributions to the household upon which the victim‘s family relied. (Tr. 89.) Appellant used his employment and income “as a weapon in order to coerce [the victim] into engaging in sexual activity.” (Tr. 90.)
{¶ 25} The prosecutor explained that allegations of sexual activity involving appellant and the victim arose the year before appellant was arrested in 2019. When the allegations initially arose, appellant used this financial leverage to get the victim to recant. (Tr. 90.)
{¶ 26} The prosecutor opined that appellant was a danger to his family and the public based on his сriminal history that included domestic violence. The victim was removed from her mother‘s custody following the September 2019 incident.
{¶ 27} Finally, the prosecutor explained that threats had been issued on appellant‘s behalf by the Heartless Felons to members of the victim‘s family. The threats were specifically issued to the victim‘s mother, grandparents, and cousins. (Tr. 5-6, 93.) The record also reflects that threats were issued to a social worker in the Department of Children and Family Services sex abuse unit, and the victim‘s mother‘s therapist. (Tr. 48-49.)
{¶ 28} The trial court confirmed that it rеviewed appellant‘s presentence investigation report, the principles and purposes of felony sentencing under
{¶ 29} The trial court explained that appellant‘s criminal history “indicates a pattern of violence to family members.” (Tr. 94.) Appellant‘s criminal history included arrests, charges, or convictions for importuning, aggravated menacing, theft, leaving the scene of an accident, disorderly conduct, criminal mischief, criminal damaging, criminal menacing, assault, alcohol-related offenses, disorderly conduct, and open container. The trial court acknowledged that appellant had three prior cases involving domestic violence.
{¶ 30} The trial court considered the harm that was caused by appellant‘s conduct, the way appellant conducted himself throughout the proceedings, and
{¶ 31} For all of the foregoing rеasons, we find that the record before this court clearly and convincingly supports the trial court‘s
{¶ 32} The matter is remanded to the trial court for the limited purpose of issuing a nunc pro tunc sentencing journal entry incorporating all of the consecutive sentence findings, including the finding under
{¶ 33} Appellant‘s sole assignment of error is overruled.
{¶ 34} Judgment affirmed; remanded.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered thаt 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 is terminated. Case remanded to the trial court for the issuance of a nunc pro tunc journal entry.
FRANK D. CELEBREZZE, JR., JUDGE
ANITA LASTER MAYS, P.J., and
EMANUELLA D. GROVES, J., CONCUR