State v. ScottState v. Scott
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: August 5, 2021
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jeffrey Schnatter, Assistant Prosecuting Attorney, for appellee.
Eric M. Levy, for appellant.
MARY EILEEN KILBANE, J.:
{¶ 1} Defendant-appellant Phillip Scott (“Scott”) appeals from his convictions for murder, having weapons while under disability, menacing by stalking, criminal damaging, and receiving stolen property. Fоr the following
Factual and Procedural History
{¶ 2} On August 15, 2019, a Cuyahoga County Grand Jury indicted Scott on Count 1, aggravated murder in violation of
{¶ 3} Although Scott and Smith had been romantically involved, at the time of the murder, Scott was on probation for domestic violence offenses committеd against Smith. After Scott and Smith ended their relationship, Smith began a relationship with Mitchell, the victim in this case. On May 26, 2019, Scott sent Smith threatening text messages and ultimately went to Smith’s home. Smith and Mitchell
{¶ 4} Scott initially pleaded not guilty to all charges. After numerous pretrial hearings, on February 18, 2020, the assistant county prosecutor and Scott’s counsel informed the сourt that they had negotiated a plea agreement. The assistant county prosecutor outlined the charges to which Scott was agreeing to plead guilty: Count 1 was amended to murder in violation of
{¶ 5} The court then engaged in a
{¶ 6} Scott’s counsel asked the court for a continuance to prepare a sentencing memorandum. The court denied this request and proсeeded directly to sentencing. The victim’s father, the prosecutor, and Scott’s counsel each addressed the court. Scott also addressed the court, apologizing to the victim’s family and the court. The court sentenced Scott to 15 years to life on Count 1, to run consecutively to the three-year firearm specification for a total of 18 years on that count; two years on Count 5; six months on Count 6; 90 days on Count 8; and onе year on Count 9.
{¶ 7} In the court’s corresponding February 18, 2020 journal entry, it accurately described Scott’s plea. With respect to his sentence, however, the journal entry correctly noted the prison sentence on each count and but then went on to impose costs. The court stated:
Fines waived. Fees waived. Costs waived. The court hereby enters judgment against the defendant in an amount equal to the costs of this prosecution.
On July 28, 2020, Scott filed a notice of appeal.
{¶ 8} On Octоber 16, 2020, the parties filed a joint motion for limited remand to the trial court to correct clerical errors in the sentencing journal entry. Specifically, the motion argued that the February 18, 2020 journal entry contained a clerical error because the court expressly waived court costs and then subsequently imposed court costs in the journal entry.
{¶ 9} On October 19, 2020, this court denied the motion for a limited remand, stating that the impositiоn of court costs is not a jurisdictional issue, and therefore, the issue may be raised as an assigned error in Scott’s brief.
{¶ 10} Scott presents the following four assignments of error for our review:
I. Appellant’s plea was not entered knowingly, intelligently and voluntarily where he was not advised of his right to be convicted by a unanimous jury verdict which he would be waiving by entering a plea of guilty in strict compliance with his rights under the United States Constitution, Criminal Rule 11 and othеrwise by law pursuant to Ramos v. Louisiana.
II. The trial court failed to make findings to support the imposition of consecutive sentences on the record at the oral sentencing hearing.
III. The trial court failed to properly consider all principals and purposes of felony sentencing prior to imposing sentence upon Appellant.
IV. The trial court erred when it ordered Appellant to pay court cоsts in its journal entry of sentencing that were waived on the record and trial counsel was otherwise ineffective for failing to object or file an affidavit of indigency.
Legal Analysis
I. Guilty Plea
{¶ 11} In his first assignment of error, Scott argues that his guilty plea was not knowingly, intelligently, and voluntarily entered because the court did not explicitly inform him of his right to be convicted by a unanimous jury verdict.
{¶ 12} The underlying purpose of
{¶ 13} In order to ensure that a defendant enters a plea knowingly, intelligently, and voluntarily, a trial court must engage in an oral dialogue with the defendant in accordance with
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of сommunity control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, tо have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
With respect to the nonconstitutional aspects of
{¶ 14} With respect to the constitutional requirements of
{¶ 15} The basis for Scott’s argument is the United States Supreme Court’s decision in Ramos v. Louisiana, ___U.S.___, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020). In Ramos, the Supreme Court held that the
{¶ 16} Scott is correct that, had his case proceeded to a jury trial, unanimity would have been required. Scott is also correct that the trial court here did not explicitly inform him that a jury verdict, should he have proceeded to a jury trial, would need to be unanimous. The Ramos decision, however, did not alter the constitutional requirements on judges in Ohio. The Supreme Court’s decision only impacts Louisiana and Oregon, the two states that have continued to convict criminal defendants with nonunanimous jury verdicts. Ramos at 1391.
{¶ 17} Ohio has long recognized that a nonunanimous jury verdict is unconstitutional and void. Work v. State, 2 Ohio St. 296, 296 (1853). Work had been charged with assault and battery and convicted by a jury of six men in probate court. The Ohio Supreme Court found that the legislation regulating the practice of probate courts was unconstitutional and void because it provided for a jury of six. Id. The court went to find that because the right to a trial by jury is so fundamental, “the number of jurors cannot be diminished, or a verdict authorized short of a unanimous concurrence of all the jurors.” Id. at 306. In 1933, the Ohio Supreme Court affirmed this court’s decision finding a Cuyahoga County rule allowing for juries of six unconstitutional. Cleveland R. Co. v. Halliday, 127 Ohio St. 278, 282, 188 N.E. 1 (1933). Decades later, in July 1973,
{¶ 18} The Ramos decision explicitly recognized Ohio’s long history of requiring unanimity, noting that the Ohio Supreme Court in Work referred to unanimity as “one of ‘the essential and distinguishing features of the trial by jury.’” Ramos at 1423, quoting Work. Further, this right is explicitly protected in
{¶ 19} After a thorough review of the plea hearing, we conclude that the trial court strictly complied with
II. Sentence
{¶ 20} In Scott’s second assignment of error, he argues that the trial court failed to make findings to support the imposition of consecutive sentences on the record at his sentencing hearing. In Scott’s third assignment of error, he argues that the trial court failed to properly consider all of thе principles and purposes of felony sentencing prior to imposing its sentence. Because both of these assignments of error deal with Scott’s sentence, we will address them together.
{¶ 21} Pursuant to
{¶ 22} Further,
(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, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense.
(b) At least twо 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.
{¶ 23} Here, Scott argues thаt the trial court failed to properly make consecutive sentence findings on the record at his sentencing hearing. After a thorough review of the record, we disagree.
{¶ 24} Here, the court summarized the consecutive sentence findings in
The question is for the record should there be any consecutive sentence. And so I just say this because I put it on the record that it’s not a mandatory sentence regarding the cases discretionary, so there could be a consecutive sentence — and I already noted to you as well, Mr. Scott. It could be Count 5 or Count 9. So what does it say under the law?
It says consecutive sentence is necessary in a discretionary manner in order to protect the public from future crimes or to punish you. A consecutive sentence, if handed down, would not be disproportionate, meaning it’s looking at the nature of the offense, the seriousness of the offense. And then the Court also has to find one of the three other findings and that would be one which you do qualify under.
It’s number one right off the bat. You committed the offense while you were under probation to us. And then number two is does one single prison term adequately reflect the seriousness of your offense and do you have prior criminal history.
So one of the three has to be met. In fact, you meet all three оf them. You have eight prior cases. You committed this act while on probation to the Court. And then in addition to that, the seriousness of the crime, the fact that somebody lost their life, would a consecutive sentence be handed down by the Court.
* * *
I believe under the Revised Code Section as I cited, specifically Revised Code Section 2929.14(C)(4), that a consecutive sentence would not be
a sentence that would be unnecеssary and that it would be a finding underneath the Revised Code Section to be an adequate sentence.
While the trial court did not use the exact language found in
{¶ 25} The court here found that consecutive sentences were necessary to protect the public and were not dispropоrtionate to the seriousness of the offenses. The court also found that the offenses were committed while Scott was on probation, a single prison term would not adequately reflect the seriousness of the offenses, which included murder. Scott also had a lengthy criminal history. Because the court made the requisite findings pursuant to
{¶ 26} In Scott’s third assignment of error, he argues that the trial court failed to properly consider all of the principles and purposes of felony sentencing prior to sentencing him. Specifically, he argues that the court failed to consider the seriousness and recidivism factors set forth in
{¶ 27} As discussed above, a sentence is contrary to law if the trial court failed to consider the purposes and principles of felony sentencing set forth in
{¶ 28}
{¶ 29} Here, the sentencing journal entry states that “[t]he court considered all required factors of the law.” Scott has not made an affirmative showing that, despite the court’s statement that it considered all required factors of law, the court actually failed to consider the purposes and principles of felony sentencing in
III. Court Costs
{¶ 30} In Scott’s fourth and final assignment of error, he argues that the trial court erred when it ordered him to pay court costs in the sentencing journal entry after waiving court costs on the record at sentencing. We agree. The state, despite joining in Scott’s mоtion for a remand to correct this issue, argues in its brief that the journal entry is not inconsistent because the court was statutorily required to enter a judgment against the defendant for court costs pursuant to
{¶ 31} At sentencing, the court explicitly stated that it was waiving all fines, fees, and court costs. The corresponding journal entry, however, contains an inconsistency because it stated, in relevant part: “Fines waived. Fees waived. Costs waived. The court hereby enters judgment against the defendant in an amount equal to the costs of this prosecution.”
{¶ 32} Although a court speaks through its journal entries, clerical errors may be corrected at any time in order to conform to the transcript of the proceedings. State v. Goines, 8th Dist. Cuyahoga No. 105436, 2017-Ohio-8172, ¶ 35, quoting State v. Lugo, 8th Dist. Cuyahoga No. 103893, 2016-Ohio-2647, ¶ 3. Here, becаuse the sentencing entry is inconsistent with the trial court’s waiver of court costs on the record, the entry can be corrected through a nunc pro tunc entry
{¶ 33} Judgment affirmed. The case is remanded to the trial court for the limited purpose of issuing a nunc pro tunc sentencing journal entry to reflect the waiver of court costs.
It is ordered that appellant recover from appellee 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.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, P.J., and
LISA B. FORBES, J., CONCUR