State v. McIntoushState v. McIntoush
Jeffrey P. Nunnari, for appellant.
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ZMUDA, J.
{¶ 1} Appellant, Javen McIntoush, appeals the November 30, 2022 judgment of the Wood County Court of Common Pleas convicting him of two counts of felonious assault with forfeiture specifications and sentencing him to a prison term of four to six years for the first count and a prison term of four years for the second count to be served consecutively for a minimum of eight years and a maximum of ten years. For the reasons that follow, we affirm.
{¶ 2} On September 15, 2021, appellant was indicted on one count of aggravated robbery in violation of
{¶ 3} The charges arose out of an incident in a parking lot outside of a bar in Bowling Green, Ohio in the early hours of August 1, 2021. After an altercation involving a pair of glasses, appellant shot his handgun twice at I.S. and J.P., though he did not hit either of them. J.P. returned fire, grazing appellant‘s head.
{¶ 4} On September 26, 2022, appellant entered a guilty plea to two counts of felonious assault, both with forfeiture specifications, in exchange for the dismissal of the remaining charges against him. At the plea hearing, the state represented that if the case had gone to trial, both J.P. and I.S. would have testified that appellant had fired “a round at [J.P.] as well as [I.S.] with – using a handgun, causing or attempt to cause physical harm to both [J.P.] as well as [I.S.].” No further statements regarding the events giving rise to the charges were stated on the record at the time the plea was entered. The trial court accepted appellant‘s guilty plea and set the case for sentencing after ordering a presentence investigation (PSI).
{¶ 6} Appellant appeared for sentencing on November 28, 2022. The transcript does not indicate that either victim appeared at the hearing. Appellant apologized on the record to the victims “for any trauma [he] may have caused,” recognizing that he “could have seriously harmed or killed someone.” The state presented general concerns for public safety, asserting that appellant had several firearm charges in Lucas County with incident dates of June 10, 2021, August 29, 2021, and September 8, 2021, all of which were close in time to the August 1, 2021 incident at issue in this case. At the time of the August 1, 2021 incident, appellant was on electronic monitoring as a condition of his bond in a case pending in Lucas County Court of Common Pleas concerning the June 2021 incident. Appellant also had been released from a youth treatment facility just months before the August 1, 2021 incident.
{¶ 7} The trial court imposed a prison term of four to six years for one count of felonious assault with forfeiture specification and four years1 for the second count of
I think it was touched on, but you are a very young individual but you have a very significant criminal history considering your age, and that dates back to the time you were a juvenile. All of these convictions and charges are related to violence and guns. And at least from what the Court has in front of it, you show no signs of slowing down your criminal behavior. You were, in fact, released from the youth treatment center in June of 2021 and you committed this offense less than two months after your release, and since then you‘ve committed other felonies in Lucas County with which you were just previously sentenced for, and those do also involve a firearm. It appears that the only way to protect the public is to keep you incarcerated for a period of time.
{¶ 8} The trial court next ordered appellant‘s prison terms to be served consecutively for a minimum of eight years and a maximum of ten years, making the following findings:
The Court finds that consecutive sentencing is necessary to protect the public from future crime and to punish the defendant. The Court also finds that the consecutive sentences are not disproportionate to the seriousness of the defendant‘s conduct and the danger that he poses to the public. The Court also finds that at least two of the multiple offenses were committed as part of one or more courses of conduct and that the harm caused by two or more of the multiple offenses is so great or unusual that no single prison term for any of the offenses committed as part of the courses of conduct adequately reflect the seriousness of the defendant‘s conduct.
At the time of his sentencing, appellant was already serving a sentence for a conviction in Lucas County, and the trial court also ordered that his sentences be served consecutively with the sentence issued in the Lucas County conviction as well, pursuant to
The Court then reviewed the seriousness and recividism factors and considered that the defendant was adjudicated a delinquent child; the defendant has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child; and the defendant has a history of criminal convictions. The Court further notes that all of the defendant‘s convictions and charges related to violence or weapons; the defendant was released from the Department of Youth Services in June of 2021 and committed this offense in August of 2021; and after this offense was committed the defendant committed multiple firearm related offenses in Lucas County.
{¶ 10} After ordering prison terms, the trial court‘s sentencing entry continued by ordering the terms to be served consecutively as follows:
The Court finds that consecutive sentencing is necessary to protect the public from future crime and to punish the defendant. The Court also finds that the consecutive sentences are not disproportionate to the seriousness of the defendant‘s conduct and the danger that he poses to the public. The Court also finds that at least two of the multiple offenses were committed as part of one or more courses of conduct and that the harm caused by two or more of the multiple offenses is so great or unusual that no single prison term for any of the offenses committed as part of the courses of conduct adequately reflect the seriousness of the defendant‘s conduct.
{¶ 11} Appellant asserts the following assignment of error for our review:
Appellant‘s consecutive sentences are contrary to law.
II. Law and Analysis
{¶ 12} Appellant argues his sentences are contrary to law because the trial court‘s findings about his consecutive sentences in this case as well as his sentence from Lucas County Common Pleas Court2 were not supported by the record. Appellant points
{¶ 13} The state responds that consecutive sentences were supported by the record because appellant shot at two victims, which could have killed them, appellant has a history of gun violence, and appellant himself conceded that he could have seriously injured or killed someone. The state also contends that the record also supported findings under
{¶ 14} We review a challenge to consecutive sentences under
{¶ 15}
{¶ 16} To impose consecutive sentences, a trial court must make certain findings in both the sentencing hearing and in the sentencing entry.4
(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 post-release 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.
{¶ 18} A trial court need not explain its reasoning for its findings as long as the record contains some evidence to support the trial court‘s findings. Bonnell at ¶ 29. Further, the trial court is not required to “give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.” Id.
{¶ 19} Indeed, the Ohio Supreme Court recently held that a trial court made findings to support consecutive sentences under
{¶ 20} Here, appellant does not challenge that the trial court properly made the first two findings under
{¶ 21} Among the three potential findings set forth in
{¶ 22} Applying the deferential standard in
III. Conclusion
{¶ 24} Appellant‘s assignment of error is overruled. We therefore affirm the November 30, 2022 judgment of the Wood County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J.
JUDGE
Gene A. Zmuda, J.
JUDGE
Myron C. Duhart, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.