State v. Roberts

• Decision Date: 14 December 2017
• Docket Number: No. 104474,104474
• Citation: 101 N.E.3d 1067,2017 Ohio 9014
• Parties: STATE of Ohio, Plaintiff–Appellee v. Douglas ROBERTS, Defendant–Appellant
• Court: Ohio Court of Appeals

101 N.E.3d 1067

2017 Ohio 9014

STATE of Ohio, Plaintiff–Appellee

v.Douglas ROBERTS, Defendant–Appellant

No. 104474

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: December 14, 2017

Erin R. Flanagan, Erin R. Flanagan, Esq., Ltd., 75 Public Square, Suite 920, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT.

Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Anthony Thomas Miranda, Assistant Prosecuting Attorney, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.

BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, J.:

{¶ 1} Douglas Roberts, also known as Franklin Jenkins, appeals the imposition of consecutive sentences following a limited remand in State v. Jenkins , 8th Dist. Cuyahoga No. 101899, 2015-Ohio-2762, 2015 WL 4133152. Roberts claims that the record does not support the R.C. 2929.14(C)(4) finding that consecutive service of his multiple sentences is proportionate to the seriousness of the offender's conduct and the danger the offender poses to the public. The parties also agree that there is a typographical error in the final sentencing entry. We affirm the conviction but remand for the limited purpose of issuing a nunc pro tunc entry to correct the clerical error.

{¶ 2} In Jenkins , the imposition of consecutive sentences, culminating in the aggregate prison term of 18 years and 11 months, was reversed under the authority of State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, because the trial court had not made the second finding under R.C. 2929.14(C)(4) —that the consecutive sentences would not be "disproportionate to the seriousness of the offender's conduct and the danger the offender poses to the public." Upon remand, the trial court made the omitted finding and reimposed the original, aggregate term.

{¶ 3} Roberts appeals once again, and accordingly, we adopt the facts as stated from Jenkins :

The sentence resulted after [Roberts's] guilty pleas in five separate cases, and included consecutive terms.

In the first case, Cuyahoga C.P. No. CR–[12]–561797–A, [Roberts] pled to robbery. He was originally sentenced to community control sanctions and ordered to participate in a community-based treatment program. The trial court informed him that he would be sentenced to a four-year prison term if he violated his community control sanctions.

[Roberts's] second case was Cuyahoga C.P. No. CR–[13]–578409–A, in which he pled to breaking and entering. The trial court sentenced him to an 11–month prison term, but suspended the sentence so that he could continue to participate in the treatment program. The court continued his community control sanctions for 18 months, to run consecutive to the first case.

Several months later, [Roberts] entered guilty pleas in three other separate cases. In Cuyahoga C.P. No. CR–14–584010–A, he pled to escape; in Cuyahoga C.P. No. CR–14–586073–A, he pled to two counts of burglary; and in Cuyahoga C.P. No. CR–14–584791–A, he pled to burglary with a notice of prior conviction specification.

In August 2014, the trial court held a sentencing hearing. The court terminated [Roberts's] community control sanctions in Case Nos. CR–[12]–561797–A and CR–[13]–578409–A, and sentenced him to four years and 11 months, respectively, on those cases. In Case No. CR–14–584010–A, [Roberts] was sentenced to six months; in Case No. CR–14–586073–A, he was sentenced to seven years on each of the two burglary counts, to be served concurrent to each other; and in Case No. CR–14–584791–A, he was sentenced to seven years. With the exception of the six-month sentence in Case No. CR–14–584010–A and the concurrent terms on the two burglary charges in Case No. CR–14–586073–A, the trial court ordered all the other terms to be served consecutively, for an aggregate sentence of 18 years and 11 months.

Jenkins at ¶ 2–6. Thus, the 18–year, 11–month aggregate prison sentence was not the maximum aggregate term at the trial court's disposal.

{¶ 4} In his second, third, and fourth assignments of error, Roberts challenges the validity of the underlying sentences, claiming (1) the prior conviction specification was contrary to law because the trial court did not rule on or reference the qualifying conviction at the resentencing hearing; (2) the trial court erred in imposing costs in the resentencing entry although the costs were properly imposed in the original sentencing; and (3) the trial court erred in ordering restitution in the resentencing hearing without first establishing the amounts due through evidence introduced at the resentencing hearing.

{¶ 5} We cannot address those three assigned errors, all of which challenge aspects of the underlying sentence that were not part of the limited remand. Jenkins, 8th Dist. Cuyahoga No. 101899, 2015-Ohio-2762, 2015 WL 4133152, at ¶ 12. "It is well recognized that the doctrine of res judicata bars claims that were raised or could have been raised on direct appeal." State v. Fountain , 8th Dist. Cuyahoga Nos. 92772 and 92874, 2010-Ohio-1202, 2010 WL 1110568, ¶ 9, citing State v. Davis , 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221. The trial court was without authority to address anything but the consecutive sentencing findings. State v. Ferrell , 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, 2014 WL 4924034, ¶ 47 ; State v. Nia , 2014-Ohio-2527, 15 N.E.3d 892, ¶ 22 (8th Dist.) ("the trial court is limited on remand to only the question raised regarding the required findings pursuant to R.C. 2929.14(C)(4) to justify consecutive sentences"). Jenkins remanded the matter solely for "the trial court to consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and, if so, to make the required findings on the record." Jenkins at ¶ 12, citing Nia at ¶ 22 ; State v. Frost , 8th Dist. Cuyahoga No. 100498, 2014-Ohio-2645, 2014 WL 2769118, ¶ 10 ; State v. Dennison , 10th Dist. Franklin No. 15AP-592, 2016-Ohio-8361, 2016 WL 7427501, ¶ 67.

{¶ 6} Having said that, the parties agree that there appears to be a typographical error in the final sentencing entry in Cuyahoga C.P. No. CR–14–586073–A. The trial court imposed restitution in the amount of $10,280.60 payable to one of the victims. The state and Roberts believe that amount should have been $1,028.60 as established at the original sentencing hearing. A trial court retains continuing jurisdiction to correct clerical errors in a judgment by nunc pro tunc entry to reflect that which actually was decided. State ex rel. Womack v. Marsh , 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 13, citing State ex rel. Cruzado v. Zaleski , 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18–19, and Crim.R. 36 ("[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time"). Although Roberts failed to address this issue in Jenkins, in light of the state's concession, we remand for the limited purpose of issuing a nunc pro tunc sentencing entry to correct the restitution amount to reflect the restitution demonstrated at the original sentencing hearing. See State v. McGee , 8th Dist. Cuyahoga No. 104566, 2017-Ohio-1363, 2017 WL 1365436, ¶ 10.

{¶ 7} In his first assignment of error, Roberts claims that the consecutive sentencing findings are not supported by the record. R.C. 2929.14(C)(4) authorizes the trial court to order consecutive sentences if, as is pertinent to this case, consecutive service (1) is necessary to protect the public from future crime or to punish the offender; (2) is not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and additionally, (3) if the offender committed the offense while awaiting trial or sentencing, under community control monitoring, or under postrelease control for a prior offense. State v. Jones , 8th Dist. Cuyahoga No. 104152, 2016-Ohio-8145, 2016 WL 7295653, ¶ 5, citing State v. Smeznik , 8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709, 2016 WL 764060, ¶ 6.

{¶ 8} The trial court made all the required findings, and Roberts is not challenging that aspect of his sentences. Instead, Roberts claims that the record does not support the second finding, that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public because the trial court referred to his criminal history collectively as eight "aggravated burglaries." Further, Roberts claims that the trial court was required to find that the harm caused by the offenses was so great or unusual that no single prison term adequately reflected the seriousness of the offender's conduct under R.C. 2929.14(C)(4)(b).

{¶ 9} In this case, Roberts contends that the consecutive sentences were disproportionate to his conduct and the danger he poses to the public because the trial court could not conclude that the multiple offenses he committed while serving community control sanctions, were "so great and unusual that no single prison term for any of the offenses committed as part of any of the course of conduct adequately reflects the seriousness of the offender's conduct" under R.C. 2929.14(C)(4)(b). This conclusion, however, inappropriately combines the proportionality finding with another, independent finding, one that the trial court was not required to make in this particular case because it is undisputed that Roberts committed the new crimes while serving community control sanctions, under R.C. 2929.14(C)(4)(a). Only one of the subdivision (a)–(c) findings is necessary to support consecutive service of prison terms.

{¶ 10} Further, the off-the-cuff generalization of Roberts's history of criminal conduct is a minor distinction that does not undermine the trial court's ultimate conclusion when the totality of the sentencing hearing is...