State v. Clay

[Cite as State v. Clay, 2020-Ohio-1499.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 108500
v. :

RANDY CLAY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 16, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-631797-A, CR-18-631963-B, and CR-18-632845-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Hannah Smith, Assistant Prosecuting
Attorney, for appellee.

Brian A. Smith Law Firm, L.L.C., and Brian A. Smith, for
appellant.

EILEEN T. GALLAGHER, A.J.:

Defendant-appellant, Randy Clay, appeals from his sentence. He

raises the following assignments of error for review:

1. The trial court’s imposition of consecutive sentences upon Clay was
not supported by the record.
 2. The record does not support the imposition of the nine-year prison
sentence upon Clay.

After careful review of the record and relevant case law, we affirm

Clay’s sentence.

I. Procedural and Factual History

This appeal stems from Clay’s participation in a series of separate

burglaries that occurred at various apartment complexes located in Cleveland,

Ohio.

In Cuyahoga C.P. No. CR-18-631797-A, Clay was named in a

six-count indictment, charging him with three counts of burglary in violation of

R.C. 2911.12(A)(2); two counts of grand theft in violation of R.C. 2913.02(A)(1);

and a single count of petty theft in violation of R.C. 2913.02(A)(1).

In Cuyahoga C.P. No. CR-18-631963-B, Clay was named in an eight-

count indictment, charging him with three counts of theft in violation of R.C.

2913.02(A)(1); three counts of burglary in violation of R.C. 2911.12(A)(3); and two

counts of vandalism in violation of R.C. 2909.05(B)(1)(b).

In Cuyahoga C.P. No. CR-18-632845-A, Clay was named in a two-

count indictment, charging him with burglary in violation of R.C. 2911.12(A)(2);

and petty theft in violation of R.C. 2913.02(A)(1).

A consolidated plea hearing was held in February 2019. At the onset

of the hearing, defense counsel expressed that Clay wished to accept a negotiated

plea agreement with the state that encompassed all three cases. Pursuant to the
packaged plea agreement, Clay agreed to plead guilty to five burglary offenses in

exchange for the dismissal of the remaining counts in each case. The prosecutor

expressed that Clay’s sentencing “exposure” under the plea agreement would be

“up to 15 years.”

Prior to accepting Clay’s plea, the trial court engaged Clay in the

necessary Crim.R. 11(C) plea colloquy. During this colloquy, Clay stated that he

understood the nature of his charges, the maximum penalties he faced, and the

rights he was waiving by entering a plea. Thereafter, Clay pleaded guilty in Case

No. CR-18-631797-A to two counts of burglary in violation of R.C. 2911.12(A)(2),

low-tier felonies of the third degree. In Case No. CR-18-631963-B, Clay pleaded

guilty to two counts of burglary in violation of R.C. 2911.12(A)(3), low-tier felonies

of the third degree. In Case No. CR-18-632845-A, Clay pleaded guilty to an

amended count of burglary in violation of R.C. 2911.12(A)(3), a low-tier felony of

the third degree. The counts remaining in each case were nolled.

Upon accepting Clay’s guilty plea, the trial court found Clay guilty of

the offenses and referred him to the Adult Probation Department for the

completion of a presentence investigation and report (“PSI report”).

A consolidated sentencing hearing was held in March 2019. Clay

spoke on his own behalf. He expressed remorse for his involvement in the crimes

and indicated that he has “a very bad drug addiction.” Defense counsel also spoke

on Clay’s behalf. Counsel outlined Clay’s “severe drug use” and indicated that

Clay’s participation in the string of burglaries was “fueled by his relapse and need
for money.” Counsel further noted that the offenses were “property based,”

involving the theft of televisions from the lobby area of each apartment complex,

and did not involve the use of weapons or injuries to any parties. Given Clay’s

“drug relapse and his need for treatment,” defense counsel sought leniency from

the court and requested the court to “consider the lower end of a prison sentence.”

In contrast, the state sought a prison sentence at the “high end” of Clay’s exposure

of “up to 15 years.” The state noted that the crimes involved multiple victims and

that Clay “committed these offenses while on APA supervision.”

After reviewing the PSI report, hearing from Clay, his counsel and

the state, the trial court sentenced Clay to 36 months in prison on each burglary

offense in Case No. CR-18-631797-A, to run concurrently to each other, but

consecutive to the prison terms imposed in Case Nos. CR-18-631963-B and CR-18-

632845-A. In Case No. CR-18-631963-B, the trial court sentenced Clay to 36

months in prison on each burglary offense, to run concurrently to each other, but

consecutive to the prison terms imposed in Case Nos. CR-18-631797-A and CR-18-

632845-A. In Case No. CR-18-632845-A, the trial court sentenced Clay to 36

months in prison on his burglary offense, to run consecutive to the prison term

imposed in Case No. CR-18-631963-B. Thus, Clay was ordered to serve an

aggregate nine-year prison term. In addition, the trial court ordered Clay to pay

restitution in an amount totaling $1,616.77.

Clay now appeals from his sentence.
 II. Law and Analysis

A. Consecutive Sentences

In his first assignment of error, Clay argues the trial court’s

imposition of consecutive sentences was not supported by the record.

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.” The imposition of consecutive sentences is contrary to

law if a trial court fails to make the findings mandated by R.C. 2929.14(C)(4).

State v. Morris, 2016-Ohio-7614, 73 N.E.3d 1010, ¶ 24 (8th Dist.), citing State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

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.’”

Bonnell at ¶ 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.

Where the trial court made the requisite consecutive sentencing

findings, R.C. 2953.08(G)(2) requires this court to affirm an order of consecutive

service unless we “clearly and convincingly” find that the record does not support
the court’s consecutive sentences findings. State v. Simmons, 8th Dist. Cuyahoga

No. 107144, 2019-Ohio-459, ¶ 11.

Clear and convincing evidence is that measure or degree of proof
which is more than a mere “preponderance of the evidence,” but not
to the extent of such certainty as is required “beyond a reasonable
doubt” in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be
established.

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

In this case, the trial court made the following statement on the

record:

The Court makes the following findings with reference to his
sentencing. The Court does find that consecutive sentences are
necessary to protect the public from future crime; that consecutive
sentences are necessary to punish the offender; that consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct; that consecutive sentences are not disproportionate to the
danger the offender poses to the public. And the Court finds that the
offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.

On appeal, Clay concedes that the trial court made the necessary

findings for imposing consecutive sentences under R.C. 2929.14(C)(4). However,

Clay contends that the court’s findings were not supported by the record. Clay

asserts that relevant mitigating circumstances, including his history of substance

abuse and the nonviolent nature of his offenses, are factors that support the

imposition of concurrent sentences.
 After careful review of the record in its entirety, we find no basis to

clearly and convincingly conclude that the record does not support the court’s

findings under R.C. 2929.14(C)(4). As this court explained in State v. Venes, 2013-

Ohio-1891, 992 N.E.2d 453 (8th Dist.), “[t]his is an extremely deferential standard

of review”:

It is also important to understand that the clear and convincing
standard used by R.C. 2953.08(G)(2) is written in the negative. It
does not say that the trial judge must have clear and convincing
evidence to support its findings. Instead, it is the court of appeals that
must clearly and convincingly find that the record does not support
the court’s findings. In other words, the restriction is on the appellate
court, not the trial judge.

Id. at ¶ 21.

In this case, the offenses committed by Clay involve a series of

burglaries of apartment complexes over a period of two months. Clay’s PSI report

reflects that Clay stole various pieces of property from the apartment complexes,

including numerous televisions, a weed trimmer, four or five Federal Express mail

packages, and a generator. In the process of facilitating these crimes, Clay caused

structural damage to several of the properties. In addition, the record reflects that

the offenses occurred while Clay was “under Adult Parole Authority supervision.”

Clay has an extensive criminal record, including numerous adult convictions for

similar property-related offenses, spanning from 1997 to 2016. In fact, the record

reflects that Clay was convicted of at least one felony or misdemeanor offense in

each of the following years: 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2005,

2006, 2007, 2009, 2010, 2011, 2015, and 2016. Most recently, Clay was convicted
in 2016 for committing a burglary offense with the same codefendant that is

involved in the present case. He was placed on community control sanctions, with

drug-treatment conditions. Given his criminal history and issues of substance

abuse, Clay’s PSI report indicates that he has a “very high risk” for recidivism.

Under the totality of these circumstances, we are unable to clearly

and convincingly find the record does not support the trial court’s findings under

R.C. 2929.14(C)(4), or that the sentence is otherwise contrary to law. In addition,

the trial court’s findings were properly incorporated into the sentencing journal

entries as required under Bonnell.

Clay’s first assignment of error is overruled.

B. Purposes and Principles of Felony Sentencing

In his second assignment of error, Clay argues that “[his] sentence,

the maximum term of imprisonment on each count, with the sentences in each

case ran consecutively to one another, was not supported by the record.” Relying

on relevant sentencing factors set forth under R.C. 2929.11 and 2929.12, Clay

contends that his sentence “should be vacated and the case remanded for

resentencing, or in the alternative, reduced or modified to run the sentences in one

or more of [his] cases concurrently to one another.”

Initially, we note that, to the extent Clay relies on the R.C. 2929.11

and 2929.12 factors to dispute the consecutive nature of his sentences, a plurality

decision by the Ohio Supreme Court has recognized that an appellate court may

only review individual felony sentences under R.C. 2929.11 and 2929.12, while R.C.
2953.08(G)(2) is the exclusive means of appellate review of consecutive felony

sentences. State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169.

The court explained as follows:

While R.C. 2953.08(G)(2)(a) clearly applies to consecutive-sentencing
review, R.C. 2929.11 and 2929.12 both clearly apply only to individual
sentences. R.C. 2929.11 speaks in terms of a court imposing “a
sentence” for “a felony.” Likewise, R.C. 2929.12(A) speaks in terms of
a court imposing “a sentence” for “a felony.” This language is
consistent with our precedent establishing that “[a] sentence is the
sanction or combination of sanctions imposed for each separate,
individual offense.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-
1245, 846 N.E.2d 824, paragraph one of the syllabus. Consecutive
service may not be ordered under R.C. 2929.14(C)(4) until the
sentencing judge imposes a prison term for each individual count, and
the judge must first impose a sentence for each count by considering
the purposes and principles of felony sentencing under R.C. 2929.11
and 2929.12.

Id. at ¶ 17. Thus, our consideration of the court’s compliance with the mandates of

R.C. 2929.11 and 2929.12 is limited to a review of Clay’s individual prison terms.

A sentence is contrary to law if it falls outside the statutory range for

the particular degree of offense or if the trial court fails to consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing

factors set forth in R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444,

2016-Ohio-5926, ¶ 58. R.C. 2929.11 and 2929.12 are not fact-finding statutes.

Therefore, although the trial court must consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.

2929.12, the court is not required to make findings or 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.

Applying the foregoing, courts have “refused to find that a sentence

is contrary to law when the sentence is in the permissible range and the court’s

journal entry states that it ‘considered all required factors of the law’ and ‘finds

that prison is consistent with the purposes of R.C. 2929.11.’” State v. Williams, 8th

Dist. Cuyahoga No. 100042, 2014-Ohio-1618, ¶ 17, quoting State v. May, 8th Dist.

Cuyahoga No. 99064, 2013-Ohio-2697, ¶ 16.

Under R.C. 2929.11(A), the three overriding purposes of felony

sentencing are “to protect the public from future crime by the offender and others,”

“to punish the offender using the minimum sanctions that the court determines

accomplish those purposes * * *,” and “to promote the effective rehabilitation of

the offender using the minimum sanctions that the court determines accomplish

those purposes without imposing an unnecessary burden on state or local

government resources.” Additionally, the sentence imposed shall be

“commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact on the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.” R.C. 2929.11(B).

Furthermore, in imposing a felony sentence, “the court shall

consider the factors set forth in [R.C. 2929.12(B) and (C)] relating to the

seriousness of the conduct [and] the factors provided in [R.C. 2929.12(D) and (E)]

relating to the likelihood of the offender’s recidivism * * *.” R.C. 2929.12.
 When a sentence is imposed solely after consideration of the factors

in R.C. 2929.11 and 2929.12, “[a]n appellate court may vacate or modify any

sentence that is not clearly and convincingly contrary to law only if the appellate

court finds by clear and convincing evidence that the record does not support the

sentence.” Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23.

Relevant to this appeal, this court has previously explained that:

“‘The weight to be given to any one sentencing factor is purely
discretionary and rests with the trial court.’” State v. Price, 8th Dist.
Cuyahoga No. 104341, 2017-Ohio-533, ¶ 20, quoting State v. Ongert,
8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10, citing State v.
Torres, 8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11. A
lawful sentence “‘cannot be deemed contrary to law because a
defendant disagrees with the trial court’s discretion to individually
weigh the sentencing factors. As long as the trial court considered all
sentencing factors, the sentence is not contrary to law and the
appellate inquiry ends.’” Price at id., quoting Ongert at ¶ 12.

State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 15.

In this case, the record demonstrates that the trial court imposed

individual prison terms within the applicable statutory ranges and expressed in

each sentencing journal entry that it considered all required factors of law and

found Clay’s sentence to be consistent with the purposes of R.C. 2929.11.

Accordingly, the record shows that the court fulfilled its obligations under both

R.C. 2929.11 and 2929.12.

While Clay’s remorse and need for substance abuse treatment are

relevant and substantial factors, so too are the factors correlating to the economic

harm suffered by the victims, Clay’s commission of the offenses while under the
supervision of the Adult Parole Authority, Clay’s criminal history, and Clay’s

unfavorable response to sanctions previously imposed for criminal convictions.

See R.C. 2929.12. This court is not permitted to substitute our judgment for that of

the sentencing court. State v. Franklin, 8th Dist. Cuyahoga No. 107482, 2019-

Ohio-3760, ¶ 47. Nor are we empowered to independently weigh the relevant

sentencing factors on review. Id. Given the nature of Clay’s conduct and the

breadth of his criminality, we are unable to conclude that Clay’s individual

sentences were clearly and convincingly unsupported by the record.

Clay’s 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 out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY