State v. Banks

[Cite as State v. Banks, 2019-Ohio-980.]
COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee :
No. 107048
v. :

EARL BANKS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 21, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-582703-B, CR-14-582808-A, and CR-14-583146-A

Appearances:

Brian R. McGraw, for appellant.

Michael C. O’Malley, Prosecuting Attorney, and Shannon
M. Raley, Assistant Prosecuting Attorney, for appellee.

LARRY A. JONES, SR., J.:

In this appeal, defendant-appellant Earl Banks challenges his 9½-

year sentence that was imposed after his original conviction and 19-year sentence

were reversed. For the reasons that follow, we affirm.
[Cite as State v. Banks, 2019-Ohio-980.]

I. Procedural and Factual History

In 2014, Banks was charged with numerous crimes in four separate

cases. He pleaded no contest in one of the cases and the trial court found him guilty

of a sole count of escape. See Cuyahoga C.P. No. CR-14-581555-A. The other three

cases proceeded to a jury trial; the charges in those case consisted of kidnapping,

aggravated robbery, felonious assault, having weapons while under disability,

burglary, aggravated menacing, vandalism, and grand theft.1 Many of the charges

contained one- and three-year firearm and repeat violent offender specifications, as

well as notices of prior conviction. The facts surrounding the charges were as

follows.

In one incident, Banks kicked in the front door to a home, entered the

house, and kicked in another door to a room where the victim was hiding. Banks

asked the victim where “Amy was”; he was apparently referring to Amy Sutton, his

codefendant. The victim said she did not know and Banks left.

In another incident, Sutton, Bank’s codefendant, had placed an online

advertisement to be an escort. At the time, she and Banks were dating and residing

together, along with another man, in the man’s house. The victim contacted Sutton

and the two made arrangements for a sexual encounter at the home where Sutton

and Banks were living, and for which the victim was to pay Sutton $100.

1

See Cuyahoga C.P. Nos. CR-14-582703-B, CR-14-582808-A, and CR-14-583146-A.
 The victim arrived at the house and Sutton took him into a bedroom.

The victim testified that he put $100 on the dresser and began to undress. When

the victim was completely undressed, Sutton started to undress. While Sutton was

disrobing, the victim heard a “kick” from outside the room. The doorjamb then

cracked and Banks entered the room. The victim reached for his gun, and he and

Banks got in a struggle over the gun. The struggle continued out of the bedroom and

the two ended up in the kitchen, still struggling.

Meanwhile, the homeowner, who had been sleeping, woke up when

he heard the commotion. He found Banks and the nude victim wrestling on the

kitchen floor. Banks instructed the homeowner to hit the victim, and the

homeowner complied, hitting the victim over the head with a chair. According to

the homeowner, the gun discharged during the struggle and the victim was shot in

his thigh. The victim testified, however, that Banks got control of the gun and shot

him twice from a distance of ten feet and then pistol whipped him.

The homeowner pushed the victim out of the house, and ordered

Sutton to give him his car keys. Sutton threw the victim’s car keys outside and left

the house. Banks also left; he still had the victim’s gun. The victim flagged down a

passing police car and initially told the officer that he had been shot and robbed at a

gas station. He later told the officer where the incident had actually occurred.

The police responded to the house where the incident occurred, and

upon the homeowner’s insistence, Sutton returned to the house to speak with the

police. Sutton told the police that she met the victim online and they agreed that he
would pay her $100 for “adult dances and talk.” According to Sutton, when the

victim arrived he took his clothes off, but did not have the money, and instead tried

to rape and rob her at gunpoint. Sutton told the police that her boyfriend “Dwayne

Wilson” entered the room and “Dwayne Wilson” and the victim got into an

altercation. She told the police she did not see the gun go off.

Sutton was also interviewed at the police station. She initially told the

police that she had invited her boyfriend “Dwayne Wilson” to spend the night, and

when he arrived he found the victim trying to rape her at gunpoint. Shortly after

Sutton’s interview at the station, the police arrested Banks in a stolen vehicle tied to

another incident that will be described below. Sutton arrived on the scene. Sutton

was interviewed again, and this time she admitted that “Dwayne Wilson” was Banks

and that Banks was the person involved in the victim’s shooting.

In another incident, as alluded to above, yet another victim had his

mother’s car stolen by Banks. In that incident, the victim, Banks, and Sutton were

at the victim’s grandmother’s house; the victim was helping his grandmother get the

house ready to rent. Sutton and Banks expressed an interest in renting the home,

so the victim allowed the two to spend the night at the house. He left the keys to his

mother’s car on a TV stand.

When the victim woke up the next morning, the keys, car, Sutton, and

Banks were gone. He called and texted Sutton who “strung him along,” promising

that the car would be returned. The victim admitted that he had previously allowed

Sutton and Banks to use his mother’s car in exchange for drugs, but maintained that
that was not the case this time. When Sutton and Banks did not return the car, the

victim reported it stolen. The police located Banks in the vehicle and apprehended

him.

The last incident consisted of Banks kicking in the apartment door of

a friend he had met in prison and stealing the friend’s guitar. The friend picked

Banks out in a photo lineup.

On this evidence, the jury found Banks guilty of numerous crimes,

including many repeat violent offender specifications. The trial court sentenced him

to an aggregate prison term of 19 years; the sentence did not include consecutive

terms except for the mandatory consecutive terms for the firearm and repeat violent

offender specifications. Banks appealed, and one of his challenges was that the trial

court erred by having the jury, instead of the court, determine the repeat violent

offender specifications. This court agreed and reversed the convictions (with the

exception of the escape conviction) and remanded the case to the trial court for a

new trial. State v. Banks, 8th Dist. Cuyahoga Nos. 102360, 102361, 102362, and

102363, 2015-Ohio-5413.

On remand, Banks entered into a plea agreement with the state of

Ohio. The plea was to fewer crimes than the jury had originally found him guilty of.

As part of the agreement, the parties recommended an agreed six-year prison

sentence to the trial court. The court did not follow the parties’ recommendation,

however; it imposed a prison sentence of nine-and-one-half years that included

consecutive terms.
 Banks now appeals and raises the following two assignments of error

for our review:

I. The trial court erred by failing to properly explain the time involved
in appellant’s sentence.

II. The trial court, without new justification, imposed consecutive time
in a case where it did not impose consecutive time in the original
sentence.

II. Law and Analysis

In his first assignment of error, Banks contends that his sentence

should be modified because the trial court failed to properly explain to him the

length of his sentence. We disagree.

At the conclusion of the sentencing hearing, Banks asked the trial

court what the total length of his sentence was. The trial court responded, “I think

it is somewhere around seven years, minus the three you have already done. * * *

But don’t hold me to it. I haven’t done that math. I did it before but I forgot it

already.” The trial court told Banks that he would get credit for the time he already

served, and that his attorney would be able to help him figure out exactly how much

time he was sentenced to.

Upon review, the court stated a sentence on the record that totaled

nine-and- one-half years; the judgment entry of conviction also set forth a nine-and-

one- half year sentence. Thus, despite the trial court’s miscalculation, which it told

Banks not to hold it to, the record and entry reflect a nine-and-one-half year

sentence.
 In State v. Caldero, 8th Dist. Cuyahoga No. 102523, 2015-Ohio-4498,

this court held that a “mere calculation mistake” did not require a modification of a

defendant’s sentence. Id. at ¶ 29. In Caldero, as here, the trial court stated the

correct sentence on the record at sentencing when imposing the sentence and in its

judgment of conviction. Id. at ¶ 33. But in “recapping” the total sentence at the

hearing, the court misspoke and stated that the sentence was less than what it had

actually imposed. Id. at ¶ 18. On appeal, the defendant contended that the lesser

sentence should be the controlling sentence. This court disagreed, stating that the

trial court made a “mere calculation mistake,” but that the “true sentence” was

reflected on the record and in the court’s sentencing entry. Id. at ¶ 29, 34.

In light of the above, the first assignment of error is without merit and

is therefore overruled.

For his second assigned error, Banks contends that the trial court

erred in imposing consecutive terms, when it had not originally done so.

As mentioned, Banks was resentenced because this court reversed his

convictions (with the exception of the escape conviction). After the reversal and

remand, he was convicted, under a plea agreement with the state, of fewer offenses

than he was when his case was tried to a jury. He was sentenced to fewer years than

he had been originally sentenced to, but the second sentence included consecutive

terms, which the original sentence did not (except for the mandatory consecutive

time for the firearm and repeat violent offender specifications).
 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.”

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.

(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.

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 precisely recite the statutory language,

“provided that the necessary findings can be found in the record and are

incorporated in the sentencing entry.” Bonnell at ¶ 37.

In making the requisite findings under R.C. 2929.14(C)(4), the trial

court stated the following on the record at the sentencing hearing:

I review[ed] the facts of all of these cases, the dates of them and your
record [and] I find that [consecutive sentences are], of course,
necessary to protect the public from future crime, [they are] not
disproportionate to the seriousness of the offender’s conduct and to
the danger posed to the public. Also, the defendant has committed
one or more of these offenses while under a sanction or was awaiting
sentencing or resolution of cases. At least two of these offenses were
committed as part of one or more courses of conduct. And of course,
as I have said, since your history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public.

Further, the trial court incorporated the findings into its sentencing

judgment entry. On this record, therefore, the trial court properly imposed

consecutive sentences.
 To the extent that Banks’s contention in this assignment of error

relates to the trial court retaliating against him for a successful appeal, we are not

persuaded.

The United States Supreme Court held that a trial court violates the

Due Process Clause of the Fourteenth Amendment under the U.S. Constitution

when it imposes a harsher sentence motivated by vindictive retaliation. North

Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969). A

presumption of vindictiveness arises when the same judge imposes a harsher

sentence following a successful appeal. Id. at 724; State v. Wagner, 3d Dist. Union

No. 14-06-30, 2006-Ohio-6855, ¶ 8.

It is implicit in sentencing or resentencing that, along with

determining the number of years of a prison term, a sentencing court also has the

authority to order the prison term to be served either concurrently or consecutively

to other sentences in a multicount conviction. State v. Saxon, 109 Ohio St.3d 176,

2006- Ohio-1245, 846 N.E.2d 824, ¶ 9; State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-

856, 845 N.E.2d 470, ¶ 100. In the context of resentencing, “when one or more

counts of a multi-count conviction are vacated and remanded, a court does not

violate the principles of Pearce as long as the aggregate length of the new sentence

does not exceed the total length of the original sentence.” State v. Nelloms, 144 Ohio

App.3d 1, 7, 759 N.E.2d 416 (2d Dist.2001); see also State v. Pearson, 130 Ohio

App.3d 577, 586, 720 N.E.2d 924 (3d Dist.1998) (implying that order of consecutive
sentences on remand without justification violated Pearce where original sentence

ordered concurrent sentences).

Here, the aggregate length of the new sentence did not exceed the

length of the original sentence. And although it is true that the original sentence was

for more crimes and did not include discretionary consecutive sentences, while the

resentence was for fewer crimes and did include discretionary consecutive

sentences, we decline on that fact alone to find that it was in retaliation for a

successful appeal, where there simply is no indication of that on the record. If the

trial court wanted to retaliate or get as close as possible to the original 19-year

sentence, it could have imposed maximum sentences, which it did not.

On this record, we find no error in the imposition of consecutive

sentences. The second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue 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.

LARRY A. JONES, SR., JUDGE

MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR