[Cite as State v. Burrell, 2017-Ohio-1041.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104593
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRIUS A. BURRELL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-599176-A
BEFORE: Celebrezze, J., E.A. Gallagher, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: March 23, 2017
ATTORNEY FOR APPELLANT
Thomas A. Rein
820 West Superior Avenue, Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Sherrie S. Royster
Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Demetrius Burrell (“appellant”), brings this appeal
challenging the trial court’s imposition of consecutive sentences. Specifically, appellant
argues that the trial court erred by imposing consecutive sentences because the court
failed to incorporate the requisite R.C. 2929.14(C)(4) findings into its sentencing journal
entry. After a thorough review of the record and law, we affirm the trial court’s
judgment and remand the matter for further proceedings consistent with this opinion.
I. Factual and Procedural History
{¶2} In Cuyahoga C.P. No. CR-15-599176-A, the Cuyahoga County Grand Jury
returned a ten-count indictment against appellant pertaining to conduct he engaged in
with his girlfriend’s daughter (“victim”). The victim was 12 years old at the time
appellant committed the offenses.
{¶3} On March 29, 2016, appellant pled guilty to (1) rape, in violation of R.C.
2907.02(A)(1)(b); (2) rape, in violation of R.C. 2907.02(A)(1)(b); (3) rape, in violation of
R.C. 2907.02(A)(2), with a one-year firearm specification; (4) rape, in violation of R.C.
2907.02(A)(1)(b); (5) gross sexual imposition, in violation of R.C. 2907.05(A)(4); and (6)
having weapons while under disability, in violation of R.C. 2923.13(A)(2). Furthermore,
on the same day, appellant pled guilty in Cuyahoga C.P. No. CR-15-599145-A to escape,
in violation of R.C. 2921.34(A)(3). At the close of the change in plea hearing, the trial
court ordered a presentence investigation report and referred appellant to the court
psychiatric clinic for a mitigation of penalty report.
{¶4} On May 18, 2016, the trial court held a sentencing hearing. The trial court
heard from the state, a counselor and advocate for the victim, defense counsel, and
appellant. In CR-15-599176-A, the trial court imposed an aggregate prison sentence of
41 years to life: ten years to life on Count 1; ten years to life on Count 2; ten years on
Count 3 to be served consecutively with the one-year firearm specification; ten years to
life on Count 4; three years on Count 6; and two years on Count 10. The trial court
ordered appellant to serve Counts 1-4 consecutively to one another and Counts 6 and 10
concurrently to the other counts. The trial court ordered appellant to register as a Tier III
sex offender, imposing in-person registration every 90 days for life.
{¶5} In CR-15-599145-A, the trial court sentenced appellant to a prison term of
one year on the escape count, and ordered this one-year sentence to run concurrently with
appellant’s sentence in CR-15-599176-A.
{¶6} Appellant filed the instant appeal challenging the trial court’s imposition of
consecutive sentences. He assigns one error for review:
I. The trial court erred by ordering [a]ppellant to serve a consecutive
sentence without making the appropriate findings required by R.C. 2929.14
and H[.]B[.] 86.
II. Law and Analysis
A. Consecutive Sentences
{¶7} In his sole assignment of error, appellant argues that the trial court erred by
imposing consecutive sentences because it did not incorporate its requisite R.C.
2929.14(C)(4) findings into its sentencing journal entry.
{¶8} We review felony sentences under the standard 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, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may overturn the imposition of consecutive sentences where the court
“clearly and convincingly” finds that (1) “the record does not support the sentencing
court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to
law.”
{¶9} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences,
the trial court must find that consecutive sentences are (1) necessary to protect the public
from future crime or to punish the offender, (2) that such sentences would not be
disproportionate to the seriousness of the conduct and to the danger the offender poses to
the public, and (3) that one of the following applies:
(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 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.
() The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶10} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the
statutory findings at the sentencing hearing, which means that “‘the [trial] court must note
that it engaged in the analysis’ and that it ‘has considered the statutory criteria and
specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio
St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to
discern that the record contains evidence to support the findings. State v. Davis, 8th Dist.
Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court is not,
however, required to state its reasons to support its findings, nor is it required to give a
rote recitation of the statutory language, “provided that the necessary findings can be
found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37.
{¶11} In the instant matter, appellant concedes that the trial court made the
requisite R.C. 2929.14(C)(4) findings during the sentencing hearing: “[appellant] seeks to
have this Honorable Court modify his sentence and order that all counts be served
concurrently, recognizing that the trial court made the findings at the sentencing hearing”
and “[c]ounsel recognizes that the trial court made findings at the sentencing hearing[.]”
Appellant’s brief at 7 and 13.
{¶12} The record reflects that the trial court made the requisite R.C. 2929.14(C)(4)
findings in support of its imposition of consecutive sentences. In making the first finding,
the trial court stated, “[i]n finding consecutive sentences or in imposing consecutive
sentences rather, the court does find that consecutive sentences are necessary to protect
the public from future crime and to punish the offender.” (Tr. 31.) In making the
second finding, the trial court stated that “the court finds that such sentences are not
disproportionate to the seriousness of the conduct and to the danger [appellant] poses to
the public.” (Tr. 31.) Regarding the third finding, the trial court found that
R.C. 2929.14(C)(4)(b) applied:
I do find that these offenses were separate offenses committed as part of
multiple courses of conduct, and the harm caused by the offenses
committed was so great that no single prison term for any of the offenses
that were committed as part of those courses of conduct adequately reflects
the seriousness of the conduct by [appellant].
(Tr. 32.)
{¶13} The trial court stated that it considered the statements from the state, defense
counsel, and appellant. The prosecutor explained that over the past six years,
[appellant] started off by touching the victim, touching her breast, touching
her vaginal area, and then that later increased to full-blown sex with the
victim. [Appellant] would pull out a semiautomatic handgun and warn
[the victim] not to tell anybody what was happening or else he would hurt
her and he would hurt her family.
(Tr. 21.) The prosecutor further stated that appellant impregnated the 12-year-old victim
and that the victim “was forced to go to a clinic and have an abortion. It has affected her
life dramatically, even including suicide attempts.” (Tr. 22.) The trial court stated that
it considered the victim impact statement that the victim’s advocate and counselor
presented. The trial court considered the presentence investigation report, the court
psychiatric clinic’s mitigation report, and a report authored by appellant’s private doctor.
The trial court stated that it “considered the purposes and principles of felony sentencing
including all seriousness and recidivism factors.” (Tr. 30.)
{¶14} Based on the foregoing analysis, we conclude that the trial court made the
appropriate consecutive sentence findings and engaged in the analysis required under
R.C. 2929.14(C)(4). It is undisputed, however, that the trial court did not incorporate its
findings into its May 20, 2016 sentencing journal entry, as required by Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37. The trial court’s sentencing journal
entry provides, in relevant part, “Counts 1, 2, 3 and 4 are to run consecutive.”
{¶15} Appellant requests that we vacate the trial court’s consecutive sentences and
order his sentences to run concurrently based on the trial court’s failure to incorporate its
findings into its sentencing entry. On the other hand, the state contends that the proper
remedy is a nunc pro tunc entry, rather than a modification of appellant’s sentence. We
agree with the state.
{¶16} The Ohio Supreme Court has distinguished between cases in which a trial
court failed to make the required consecutive sentence findings at the sentencing hearing
and cases in which a trial court properly made the required findings at the sentencing
hearing but failed to incorporate its findings into the sentencing journal entry. See
Bonnell. Regarding the former, the Ohio Supreme Court has held that a trial court
cannot correct its failure to make the required findings at the sentencing hearing by
issuing a nunc pro tunc entry. Bonnell at ¶ 30, citing State v. Miller, 127 Ohio St.3d
407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 16. On the other hand,
[a] trial court’s inadvertent failure to incorporate the statutory findings in
the sentencing entry after properly making those findings at the sentencing
hearing does not render the sentence contrary to law; rather, such a clerical
mistake may be corrected by the court through a nunc pro tunc entry to
reflect what actually occurred in open court.
(Emphasis added.) Id., citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967
N.E.2d 718, ¶ 15.
{¶17} Accordingly, we conclude that the trial court made the appropriate
consecutive sentence findings and engaged in the analysis required under
R.C. 2929.14(C)(4). Furthermore, we cannot “clearly and convincingly” find that the
record does not support the trial court’s findings. However, we remand the matter to the
trial court for the limited purpose of issuing a nunc pro tunc journal entry incorporating
its consecutive sentence findings. See Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, at syllabus.
{¶18} Appellant’s sole assignment of error is overruled.
III. Conclusion
{¶19} After thoroughly reviewing the record, we affirm appellant’s sentence.
The trial court made the required findings for the imposition of consecutive sentences and
the court’s findings are supported by the record. However, we remand the matter for the
sole purpose of the trial court issuing a nunc pro tunc entry incorporating its findings for
the consecutive sentences into its sentencing journal entry.
{¶20} Judgment affirmed. Case is remanded for the limited purpose of having
the trial court incorporate, nunc pro tunc, its consecutive sentence findings into its
sentencing journal entry.
It is ordered that appellee recover of appellant 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.
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR