STATE OF OHIO v. MELVIN WEST
No. 105568
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 15, 2018
[Cite as State v. West, 2018-Ohio-956.]
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595067-A
BEFORE: Boyle, J., McCormack, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: March 15, 2018
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: John Farley Hirschauer
Anthony Thomas Miranda
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Melvin West, appeals his sentence and the trial court‘s imposition of court costs. On appeal, he raises two assignments of error for our review:
- Appellant‘s sentence is contrary to law аnd consecutive sentences were not properly imposed.
- The imposition of court costs in the journal entry without advising Appellant in open court violated Appellant‘s rights to due process.
{¶2} Finding no merit to his assignments of error, we affirm.
I. Procedural History and Factual Background
{¶3} On May 20, 2015, a Cuyahoga County Grand Jury indicted West for six counts of trafficking, four counts of drug possession, two counts of permitting drug abuse, and one count of possessing criminal tools. All of the trafficking counts carried numerous specifications.
{¶4} Subsequently, the state and West entered a plea agreement, under which West would plead guilty to two counts of trafficking, a felony of the fifth degree with forfeiture specifications (heroin) and a fеlony of the fourth degree with a juvenile specification (cocaine). In exchange, the state would dismiss the 11 remaining charges as well as the charges against West‘s wife, who was also charged in the indictment for a number of drug-related offenses.
{¶5} On July 21, 2015, West pleaded guilty to the two trafficking counts; however, he failed to appear for his sentencing hearing on August 18, 2015, and a capias was issued for his arrest. On June 28, 2016, West turned himself into authorities.
II. Standard of Review
{¶7} An appellate court must conduct a meaningful review of the trial court‘s sentencing decision. State v. Johnson, 8th Dist. Cuyahoga No. 97579, 2012-Ohio-2508, ¶ 6, citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892.
that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellant court finds by clear and convincing evidence that the record does not support the sentence.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
III. Law and Analysis
A. Maximum Sentences
{¶8} Under his first assignment of error, West contests the trial court‘s imposition of the maximum sentence, arguing that it is contrary to law because it was not supported by the record.
{¶9} Foremost, trial сourts have full discretion to impose the maximum sentence as long as it remains within the statutory range and are not required to make findings and give reasons for imposing more than the minimum sentence. State v. Pavlina, 8th Dist. Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Here, the trial court‘s sentence for both of West‘s felonies were within the permissible statutory range.
{¶10} When sentencing a defendant, the court must consider the purpose and principles of felony sentencing set forth in
{¶11} Trial courts, however, are not required to make factual findings under
{¶13} In Blevins, the appellant made a similar argument, which was “premised on the assumption that the trial court imposed the maximum sentence because of the court‘s view regarding the benefit appellаnt received from the plea agreement, rather than the * * * factors and considerations that prompted the court to impose consecutive sentences.” Id. at ¶ 34. We disagreed, noting that “[a] plea agreement does not * * * preclude the trial court‘s consideration of the underlying facts of the case in determining the appropriate sentence to impose” and, therefore, “the trial court is permitted to consider the original charge when imposing its sentencing.” Id. at ¶ 36, citing State v. Peal, 8th Dist. Cuyahoga No. 97644, 2012-Ohio-6007; see also State v. Reeves, 8th Dist. Cuyahoga No. 100560, 2015-Ohio-299, ¶ 9 (when sentencing defendants, trial courts may consider charges that were dismissed pursuant to the plea agreement).
{¶14} Here, the trial court‘s journal entry contains language indicating that it considered the required statutory factors. Additionally, the trial court was allowed to consider the case‘s underlying facts as well as West‘s criminal background when imposing an appropriate sentence. Id. at ¶ 36. At the sentencing hearing, the trial court
B. Consecutive Sentences
{¶15} Also under his first assignment of error, West argues that the trial court improperly imposed consecutive sentences for his drug trafficking convictions. A defendant can challenge consecutive sentences on appeal by arguing that the consecutive sentences are contrary to law because the court failed to make the necessary findings under
{¶16} In Ohio, sentences are presumed to run concurrent to one another unless the trial court makes the required findings under
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * * 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.
Id. The failure to make the above findings renders the imposition of consecutive sentences contrary to law. State v. Lawson, 8th Dist. Cuyahoga No. 105038, 2017-Ohio-4189, ¶ 9, citing State v. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075.
{¶17} When making the above findings, however, a trial court is not required to engage in “a word-for-word recitation” of
{¶18} At the sentencing hearing, the trial court first reviewed West‘s extensive criminal record that spanned approximately 30 years and included juvenile charges of
{¶19} After ordering that those two sentences run consecutively, the court stated:
Obviously, you have been a long time drug dealer in our community, which, of course, would lead the Court to believe that you are part of the heroin epidemic that has taken the lives of over 150 residents of this county, and the 150 mark we hit sometime in May. I don‘t have any data numbers for June or July, but I‘m sure it is growing.
The Court finds that consecutive sentences are therefore necessary to protect the рublic from future crime by you, and it is not disproportionate for the seriousness of your conduct and to the danger your conduct poses and imposes to the public.
You also committed one or more of these sentences as a course of conduct, selling heroin on April 7th, cocaine on April 16th, numerous other chargеs were dismissed represent other dangers as well.
Your history of criminal conduct dealing drugs since 1989, along with other crimes, demonstrates that consecutive sentences are necessary to protect the public from future crimes by you.
{¶20} Based on the record, it is clear that the trial court delineated all of the findings necessary undеr
{¶21} West argues that the trial court failed to explain “why his conduct required the imposition of consecutive sentences or how this will protect the public.” We disagree. When the General Assembly enacted H.B. 86, reviving Ohio‘s presumption for concurrent sentences and requiring trial courts to make findings before imposing consecutive sentences, it deleted the requirement under S.B. 2 that required a trial court to state its reasons for imposing consecutive sentences. State v. Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 11. Thus, the trial court was not required to explain “why” it made its findings.
{¶22} West also argues that the trial court‘s “use of consecutive sentencing does not address the substance abuse problem that underlies and drives [his] crimes” and that a sentence including substance abuse treatment “would better serve the interest of the public and would punish [him] with the minimum sanctions necessary to accomplish the purposes of
{¶23} The trial court also properly incorporated the necessary findings into its sentencing journal entry as required. See Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at syllabus. Therefore, we find that the trial court‘s findings were sufficient under
{¶25} West further argues that the record does not support the imposition of consecutive sentences because while “the court spent most of the time discussing its conclusion that [he] was a contributor to the heroin crisis in the county and responsible for approximately 150 deaths that resulted from heroin use[,]” he had no prior convictions involving heroin. West, however, mischaraсterizes the statements made by the trial court, which actually were, “[Y]ou have been a long time drug dealer in our community, which, of course, would lead the Court to believe that you are part of the heroin epidemic that has taken the lives of over 150 residents of this county, and the 150 mark we hit sometime in May.” West pleaded guilty to trafficking hеroin after he was caught with the substance. As a result, the trial court was not incorrect in labeling West as a contributor to the heroin epidemic and identifying the epidemic‘s drastic effects on this
{¶26} Accordingly, we overrule West‘s first assignment of error.
C. Court Costs
{¶27} In his second assignment of error, West argues that the trial court erred when it ordered him to pay court costs in its sentencing journal entry but not at the sentencing hearing. He argues that the appropriate remedy is to remand the case with an order to waive his court costs because of his indigent status. The state concedes this error, but argues that the issue should be remanded to determine whether court costs are appropriate.
{¶28} Our court, sitting en banc, recently held that a “trial court‘s failure to impose court costs at the sentencing hearing, but ordering the defendant to pay court costs in the judgment entry of conviction, constitutes reversible error.” State v. Taylor, 8th Dist. Cuyahoga No. 104243, 2017-Ohio-9270, ¶ 13. Our holding followed the Ohiо Supreme Court‘s ruling in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, which held that a trial court‘s failure to orally notify a defendant of court costs at the sentencing hearing is error. Joseph at ¶ 22.
{¶29} Nevertheless, less than a month after Taylor was released, the Ohio Supreme Court decided State v. Beasley, Slip Opinion No. 2018-Ohio-493. In Beasley, which was a death-penalty case, the trial court imposed court costs in its journal entry but failed to mention them during the sentencing hearing. In his appeal to the Ohio Supreme
{¶30} After review, we find that Beasley effectively overrules this court‘s en banc decision in Taylor. Therefore, we find that the lower court did not err and that West‘s request for a remand is meritless.
{¶31} Accordingly, we overrulе West‘s second assignment of error.
{¶32} Judgment affirmed.
It is ordered that appellee recover from appellant the 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 exeсution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
MARY J. BOYLE, JUDGE
TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR