State v. Curtis

1

2022-Ohio-1691

STATE OF OHIO Plaintiff-Appellee v. BLAKE L. CURTIS Defendant-Appellant

No. 2021-CA-19

Court of Appeals of Ohio, Second District, Miami

May 20, 2022

(Criminal Appeal from Common Pleas Court) Trial Court Case No. 2020-CR-468

MATTHEW C. JOSEPH, Attorney for Plaintiff-Appellee

KYLE J. LENNEN, Attorney for Defendant-Appellant

OPINION

WELBAUM, J.

{¶ 1} Defendant-appellant, Blake L. Curtis, appeals from his conviction in the Miami County Court of Common Pleas after pleading guilty to one count of felonious assault and one count of aggravated assault. Specifically, Curtis challenges the trial court's decision to impose consecutive sentences on grounds that the trial court's history-of-criminal-conduct finding under R.C 2929.14(C)(4)(c) was unsupported by the record. Curtis also contends that the prison terms imposed by the trial court were excessive given that he was a first-time felony offender. For the reasons outlined below, the judgment of the trial court will be affirmed, but the matter will be remanded to the trial court for the sole purpose of issuing a nunc pro tunc sentencing entry that accurately reflects the history-of-criminal-conduct findings that the trial court made at the sentencing hearing.

Facts and Course of Proceedings

{¶ 2} On November 9, 2020, a complaint was filed in the Miami County Municipal Court charging Curtis with two second-degree-felony counts of felonious assault. After the complaint was filed, Curtis waived his right to a preliminary hearing and the matter was bound over to the Miami County Court of Common Pleas. Once the matter was bound over, Curtis waived his right to be prosecuted by indictment. The State thereafter filed a bill of information charging Curtis with one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree, and one amended count of aggravated assault in violation of R.C. 2903.12(A)(2), a felony of the fourth degree. The charges stemmed from allegations that Curtis ran over the father of his former fiancée with his vehicle and then punched him in the head while he was pinned underneath the vehicle.

{¶ 3} On January 22, 2021, Curtis pled guilty as charged in the bill of information. The trial court accepted Curtis's guilty plea and thereafter sentenced Curtis to an indefinite term of 6 to 9 years in prison for the felonious assault and a definite term of 16 months in prison for the aggravated assault. After considering the statutory criteria under R.C. 2929.14(C)(4), the trial court ordered Curtis's prison terms to be served consecutively. In doing so, the trial court sentenced Curtis to a total, indefinite term of 7 years and 4 months to 10 years and 4 months in prison.

{¶ 4} Curtis now appeals from his conviction, raising two assignments of error for review.

First Assignment of Error

{¶ 5} Under his first assignment of error, Curtis contends that the trial court improperly imposed consecutive sentences based on his history of criminal conduct. We disagree.

{¶ 6} When reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it clearly and convincingly finds either: (1) the record does not support the sentencing court's findings under certain statutes (including R.C. 2929.14(C)(4), which concerns the imposition of consecutive sentences); or (2) the sentence is otherwise contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).

{¶ 7} Pursuant to R.C. 2929.14(C)(4), a trial court may impose consecutive sentences if it finds that: (1) consecutive service is necessary to protect the public from future crime or to punish the offender; (2) consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (3) one or more of the following three findings are satisfied:

(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 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.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 8} "[A] trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry[.]" State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. "[W]here a trial court properly makes the findings mandated by R.C. 2929.14(C)(4), an appellate court may not reverse the trial court's imposition of consecutive sentences unless it first clearly and convincingly finds that the record does not support the trial court's findings." State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.); Marcum at ¶ 22. This is a very deferential standard of review, as "the question is not whether the trial court had clear and convincing evidence to support its findings, but rather, whether we clearly and convincingly find that the record fails to support the trial court's findings." (Citation omitted.) Withrow at ¶ 38. In applying that standard of review, "the consecutive nature of the trial court's sentencing should stand unless the record overwhelmingly supports a contrary result." (Citation omitted.) Id. at ¶ 39. "[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld." Bonnell at ¶ 29.

{¶ 9} In this case, Curtis does not dispute that the trial court made the statutorily-required consecutive-sentence findings at the sentencing hearing and incorporated them into the sentencing entry. Instead, Curtis challenges the trial court's finding under section (c) of R.C. 2929.14(C)(4), i.e., that his history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by him. According to Curtis, this finding is not supported by the record because it is based only on a single juvenile adjudication for assault and his criminal conduct in the instant case. Although Curtis agrees that juvenile adjudications can be used as prior criminal history for purposes of imposing consecutive sentences, see State v. Lipker, 2d Dist. Clark No. 2012-CA-55, 2013-Ohio-3278, ¶ 16, Curtis argues that a single juvenile adjudication is insufficient to support the trial court's history-of-criminal-conduct finding. Curtis also argues that it was erroneous for the trial court to consider his criminal conduct in the instant case when making the history-of-criminal-conduct finding. For these reasons, Curtis claims that the imposition of consecutive sentences was improper and that his sentence should be vacated.

{¶ 10} In support of his claims, Curtis cites to a decision of the Eighth District Court of Appeals, State v. Batiste, 2020-Ohio-3673, 154 N.E.3d 1220 (8th Dist.). In Batiste, the trial court imposed consecutive sentences for various offenses committed by the defendant and relied on two factors when making its history-of-criminal-conduct finding: (1) the defendant's prior juvenile adjudication for robbery; and (2) the criminal conduct for which the defendant was being sentenced. Id. at ¶ 18. On appeal, the Batiste court held that the trial court had erroneously relied on the criminal conduct that the defendant was being sentenced for when making its history-of-criminal-conduct finding, as the court explained that said finding "does not include the offenses of the case at issue." Id. at ¶ 19, citing State v. Green, 8th Dist. Cuyahoga No. 102421, 2015-Ohio-4078, ¶ 17, and State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, ¶ 46. The court in Batiste also held that the "use of an offender's juvenile criminal history is generally reserved for instances where the offender has an extensive juvenile history." (Emphasis sic.) Id. at ¶ 20. Because the defendant in Batiste only had one juvenile adjudication for robbery, the Eighth District found that the record did not support the trial court's history-of-criminal-conduct finding and thus did not support the imposition of consecutive sentences. Id. at ¶ 18-21.

{¶ 11} Curtis contends that, like Batiste, the trial court in this case based its history-of-criminal-conduct finding on a single juvenile adjudication and his criminal conduct in the instant case. The record, however, establishes otherwise. Unlike the defendant in Batiste, Curtis's history of criminal conduct included more than just a single juvenile adjudication and the instant criminal offenses. The record establishes that Curtis had juvenile adjudications for assault in 2010 and underage consumption of alcohol and drugs in 2011. Curtis also had adult misdemeanor convictions for criminal damaging in 2015 and disorderly conduct in 2017 with the disorderly conduct conviction being amended from an original charge of resisting arrest. Between 2010 and 2012, Curtis acquired several charges as a...