State v. Mitchell

[Cite as State v. Mitchell, 2023-Ohio-1034.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :

Plaintiff-Appellee, :
No. 111558
v. :

ANDRE MITCHELL, SR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: March 30, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-640974-A, CR-19-642469-A, CR-21-660484-A,
CR-21-661502-A, CR-22-666926-A, and CR-22-667411-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Michael Timms, Assisting Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Francis
Cavallo, Assistant Public Defender, for appellant.

EMANUELLA D. GROVES, J.:

{¶ 1} Defendant-appellant, Andre Mitchell Sr. (“Mitchell”), appeals his

54-month prison sentence following felony convictions in six cases. For the

reasons that follow, we affirm the trial court’s judgment and remand the case to
the trial court for the sole purpose of issuing a nunc pro tunc entry incorporating

its findings for a consecutive sentence.

Procedural and Factual History

{¶ 2} On March 14, 2019, Mitchell’s girlfriend (“J.R.”) called 911. She

reported to responding officers that Mitchell grabbed her by the hair, pulled her

into his car, and put a firearm in her mouth. On May 20, 2019, a temporary

protection order was granted, naming J.R. as a protected person. Mitchell was

ordered to have no contact with J.R. (“Case 1”). Then on June 9, 2019, while on

bond, Mitchell was stopped while operating a motor vehicle in the city of Solon.

Although the protection order was still active, J.R. was the passenger of the motor

vehicle. Mitchell was arrested and an inventory search of the vehicle uncovered a

loaded and operable firearm in the vehicle’s glove compartment (“Case 2”).

{¶ 3} On July 24, 2019, while Mitchell had an active capias in Case 1, for

failing to appear, he was arrested in possession of a stolen vehicle and stolen plates

(“Case 3”).

{¶ 4} On January 15, 2020, in Case 1, the felonious assault, abduction, and

domestic violence charges were dismissed after J.R. recanted her statement.

Mitchell pled guilty in Case 3 to two counts of receiving stolen property, fourth-

and fifth-degree felonies, and one count of carrying concealed weapons, a first-

degree misdemeanor, with a forfeiture of the weapon; and lastly, in Case 2, to one

count of violation of a protection order, a first-degree misdemeanor. The trial

court ordered a PSI, and Mitchell was sentenced on February 13, 2020.
 {¶ 5} The trial court imposed two years of community-control supervision

on each of the two counts of receiving stolen property, Case 3. The trial court then

imposed 180 days in a local jail for the domestic violence and violation of a

protection order offenses, both first-degree misdemeanors, Case 2. The trial court

then suspended the jail time and ordered Mitchell to complete two years of

probation on each count, supervised by the domestic violence unit. Mitchell was

further ordered to have no contact with victims, including J.R.

{¶ 6} On June 17, 2020, while under community-control supervision in

Cases 2 and 3, Mitchell got into an argument with parties in another vehicle at a

gas station. The individuals in the other vehicle shot at Mitchell, and he fired back.

Mitchell was charged with discharging a firearm on or near prohibited premises, a

second-degree felony, and having weapons while under disability, a third-degree

felony (“Case 4”).

{¶ 7} On May 16, 2021, Mitchell allegedly smacked a drink out of J.R.’s

hand, then shot in the air and at her. He was charged with felonious assault of J.R.,

with one- and three-year firearm specifications, domestic violence, a fourth-degree

felony, and child endangering, a first-degree misdemeanor (“Case 5”).

{¶ 8} Less than a month later, Maple Heights Police found Mitchell

sleeping and under the influence of alcohol in his car with a firearm in his pant leg,

a rifle in his trunk, and suboxone pills in the car. Mitchell was charged with having
weapons while under disability, a third-degree felony, and carrying a concealed

weapon, a fourth-degree felony (“Case 6”).

{¶ 9} Finally, Mitchell had PCP mailed to him in the county jail while he

was awaiting trial on the preceding three cases. He was charged with one count of

drug possession, a fifth-degree felony (“Case 7”). Mitchell eventually entered into

the following plea agreement:

In Case 4, he pled guilty to having weapons while under disability, a
third- degree felony.

In Case 5, Mitchell pled guilty to domestic violence, a fourth-degree
felony.

In Case 6, Mitchell pled guilty to having weapons while under
disability, a third-degree felony, and drug possession a first-degree
misdemeanor; and

Case 7, Mitchell pled guilty to one count of drug possession, a fifth-
degree felony.

The trial court ordered a presentence investigation (“PSI”) and set the matter for

sentencing.

{¶ 10} On May 4, 2022, Mitchell appeared for sentencing with new counsel.

The trial court stated that it had reviewed the PSI and heard from the parties. The

trial court then sentenced Mitchell to maximum prison terms in three cases.

Mitchell was sentenced to 36 months for having weapons while under disability, a

third-degree felony, Case 4; 18 months for domestic violence, a fourth-degree

felony, Case 5; and 12 months for drug possession, a fifth-degree felony, Case 7.
 {¶ 11} The trial court imposed an 18-month prison sentence in Case 6 for

having weapons while under disability, a third-degree felony, to be served

consecutively to Mitchell’s other sentences.

{¶ 12} The trial court also terminated community-control supervision and

imposed a prison sentence of 18 months in Case 2, and a local jail term of 180 days

in Case 3, to run concurrently with Mitchell’s four other cases. The aggregate

prison sentence was a definite term of 54 months.

{¶ 13} Mitchell now appeals and assigns the following error for our review:

Assignment of Error

The trial court erred when it imposed the maximum sentence without
support in the record for the requisite statutory findings under R.C.
2929.11, 2929.12, and 2929.14.

Standard of Review

{¶ 14} R.C. 2953.08(G)(2) provides for appellate review of sentences and

describes two situations where an appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section, or may vacate the

sentence and remand the matter to the trial court for resentencing. R.C.

2953.08(G)(2) requires appellate courts to apply the clear-and-

convincing standard on review of a consecutive sentence. State v. Gwynne, Slip

Opinion No. 2022-Ohio-4607, ¶ 20. The evidentiary standard is that “the appellate

court, upon a de novo review of the record and the findings, has a ‘firm belief’ or

‘conviction’ that the findings — the criteria mandated by the legislature to be met
before the exception to concurrent sentences can apply — are not supported by the

evidence in the record.” Id. at ¶ 23.

Law and Analysis

{¶ 15} For ease of analysis, we will address Mitchell’s assignment of error

under R.C. 2929.14 first, then review proposed errors related to R.C. 2929.11 and

2929.12 together.

R.C. 2929.14

{¶ 16} Under R.C. 2929.14(C)(4), the trial court may not impose

consecutive sentences unless it finds consecutive sentences are “necessary to

protect the public from future crime or to punish the offender”; “not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public” and at least one of the following three factors:

(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
* * *, 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.
R.C. 2929.14(C)(4).

{¶ 17} Here, Mitchell was sentenced to an 18-month prison sentence in

Case 6, for one count of having weapons while under disability, a felony of the

third- degree. The trial court imposed the sentence consecutively to his other

felony offenses. Mitchell argues that the reviewing court can clearly and

convincingly find that the record does not support the sentencing court’s findings

under R.C. 2929.14. We disagree.

{¶ 18} The Ohio Supreme Court recently clarified the process an appellate

court must follow when reviewing a consecutive sentence pursuant to R.C.

2953.08(G)(2)(a). The holdings in Gwynne clarify how consecutive sentences are

to be imposed and reviewed and are in accord with the legislature’s intentions.

State v. Gwynne, 2022-Ohio-4607, ¶ 24.

{¶ 19} The appellate court may take any action authorized by this division

if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant; or

(b) That the sentence is otherwise contrary to law.

{¶ 20} When reviewing the record under the clear-and-convincing

standard, the first core requirement is that there be some evidentiary support in

the record for the consecutive-sentence findings that the trial court made. Id. at

¶ 28. If after reviewing the applicable aspects of the record and what, if any,
evidence it contains, the appellate court finds that there is no evidence in the record

to support the consecutive-sentence findings, then the appellate court must

reverse the order of consecutive sentences. A record that is devoid of evidence

simply cannot support the findings required by R.C. 2929.14(C)(4); there must be

an evidentiary basis on which these findings rest. Id. Although Mitchell argues

that the record does not support the requisite findings under R.C. 2929.14, a

thorough review of the record reflects otherwise. In the instant case, the trial court

made the following findings on the record:

The court is finding consecutive sentences is necessary to protect the
community. It’s not disproportionate to what’s occurred in these
cases. Also, these occurred while he was on community control
sanctions. The harm was so great or unusual, a single term does not
adequately reflect the seriousness, and his criminal history shows that
consecutive terms are needed to protect the public.

{¶ 21} Clearly, the court set forth its findings for consecutive sentences by

noting that Mitchell committed additional offenses while on community control

and his criminal record. We find that the trial court made the requisite findings

under R.C. 2929.14(C)(4) for consecutive sentences; however, it failed to

incorporate the findings in the sentencing entry. Under R.C. 2929.14(C)(4), the

trial court must make each finding required under R.C. 2929.14(C)(4) at the

sentencing hearing and then incorporate those findings into its sentencing journal

entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
 {¶ 22} A trial court “has no obligation to state reasons to support its

findings,” but the necessary findings “must be found in the record and

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

Findings Must be Incorporated into the Journal Entry

{¶ 23} Where the trial court has failed to incorporate

the R.C. 2929.14(C)(4) findings into the sentencing entry the matter must be

remanded for the sole purpose of the trial court issuing a nunc pro tunc entry

incorporating its findings for consecutive sentences. Bonnell at ¶ 30, citing State

v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15. State v.

Vitumukiza, 8th Dist. Cuyahoga No. 110633, 2022-Ohio-1170, ¶ 30, and “[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.” Id. at ¶ 15. Here, the trial court made the requisite

statutory findings during the sentencing hearing and its inadvertent failure to

include those findings in the sentencing entry can be cured on remand. We find

evidentiary support in the record to support the trial court’s imposition of a

consecutive sentence in Case 6.

Consideration of Consecutive and Aggregate Sentences

{¶ 24} The second requirement under R.C. 2953.08(G)(2)(a) is that

whatever evidentiary basis there is, it be adequate to fully support the trial court’s
consecutive-sentence findings. This requires the appellate court to focus on both

the quantity and quality of the evidence in the record that either supports or

contradicts the consecutive sentence findings. Id. at ¶ 29.

“[A] de novo standard of review applies to whether the evidence in the
record supports the findings that were made. Under this standard,
the appellate court is, in fact, authorized to substitute its judgment for
the trial court’s judgment if the appellate court has a firm conviction
or belief, after reviewing the entire record, that the evidence does not
support the specific findings made by the trial court to impose
consecutive sentences, that includes the number of consecutive terms
and the aggregate sentence that results.”

Id. at ¶ 12.

{¶ 25} We must therefore address whether the trial court considered the

number of consecutive sentences it imposed with the aggregate prison sentence of

54 months. “[W]hen a sentencing court makes the statutory findings

under R.C. 2929.14(C)(4) for consecutive sentences, it must consider the number

of sentences that it will impose consecutively along with the defendant’s aggregate

sentence that will result.” State v. Jones, 8th Dist. Cuyahoga No. 110742, 2023-

Ohio-380, ¶ 192. “Similarly, we interpret R.C. 2929.14(C)(4)(c) to require a trial

court to consider the number of consecutive sentences that it will impose on a

defendant with the aggregate prison term. A trial court cannot make this necessity

finding without considering the overall prison term that it will be imposing.” State

v. Gwynne, 2022-Ohio-4607, ¶ 15.

{¶ 26} In the case at hand, the trial court identified on the record several

reasons in support of its findings at the sentencing hearing. Mitchell faced an
aggregate sentence of 84 months if the trial court had run all of Mitchell’s

sentences consecutively. The court commented on Mitchell’s lack of amenability

to community-control supervision; a high chance of malingering his mental health

symptoms; a criminal history replete with many violent allegations and arrests;

aggravated burglaries; attempted murder that was pled down; burglaries;

domestic violence; several felonious assaults; firearm specification allegations and,

that offenses in four of the six cases that Mitchell was sentenced occurred while he

was on community-control supervision in two older cases. The court stated:

So that’s 36 months plus 18 months consecutive, so that’s four-and-a-
half years. I’m granting 477 days jail time credit, so that reduces your
sentence considerably. I’ll also note that your criminal history is
replete with many violent allegations and arrests, aggravated
burglaries, attempted murder that was pled down to vandalism with
an F5, burglaries, domestic violence, several, felonious assaults, and
firearm specifications.

{¶ 27} The necessary statutory findings are found in the record to support

Mitchell’s 18-month consecutive sentence. Further, the quality and quantity of

evidence in the record support the trial court’s findings to impose one 18-month

prison sentence consecutive to Mitchell’s 36-month concurrent sentences for an

aggregate sentence of 54 months. We cannot say that there is clear and convincing

evidence that the record does not support the specific findings made by the trial

court to impose one consecutive sentence, under R.C. 2929.14(C)(4). The failure

to incorporate findings made on the record to the sentencing entry does not render

the consecutive sentence contrary to law.

R.C. 2929.11 and 2929.12
 {¶ 28} Mitchell also challenges his sentencing subject to R.C. 2929.11 and

2929.12. Again, this court must turn to R.C. 2953.08(G)(2)(b), that is the

mechanism that allows a reviewing court to increase, reduce, or otherwise modify

or vacate a sentence and remand the matter back to a trial court if it finds that a

sentence is contrary to law. State v. Branch, 8th Dist. Cuyahoga No. 110050, 2022-

Ohio-132, ¶ 2. In each of Mitchell’s remaining felony offenses, the trial court

imposed a maximum prison sentence. Mitchell argues that the trial court erred

when it failed to consider mitigating circumstances under R.C. 2929.11 and

2929.12 and that there is clear and convincing evidence that the findings were not

supported by the record.

{¶ 29} Under R.C. 2953.08(G)(2)(b), a sentence is contrary to law if (1) the

sentence falls outside the statutory range for the particular degree of offense, or is

otherwise contrary to law or, (2) the trial court failed to consider the purposes and

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

forth in R.C. 2929.12. Id. at ¶ 3.

{¶ 30} The court imposed a maximum 36-month prison sentence for a

third-degree felony; an 18-month prison sentence for each of Mitchell’s two fourth-

degree felony offenses, and a 12-month prison sentence for a fifth-degree felony.

The trial court ordered the sentences to be served concurrently and each sentence

fell within the statutory range.

{¶ 31} Mitchell does not argue that his maximum sentences fell outside of

the statutory range, nor does he claim the trial court considered factors extraneous
to R.C. 2929.11 and 2929.12. Accordingly, the first situation that would allow a

modification under R.C. 2953.08(G)(2)(b) is inapplicable. We can only find

Mitchell’s sentences contrary to law if the sentencing court failed to consider

R.C. 2929.11 and 2929.12 when it imposed Mitchell’s sentences.

{¶ 32} The alternative situation under R.C. 2953.08(G)(2)(b) where an

appellate court can intervene in a felony sentencing is when the trial court has

failed to be “guided by the overriding purposes of felony sentencing,” i.e., (1) “to

protect the public from future crime by the offender and others,” (2) “to punish the

offender,” and (3) “to promote the effective rehabilitation of the offender using the

minimum sanctions that the court determines to accomplish those purposes

without imposing an unnecessary burden on state or local government resources.”

Id. at ¶ 17, quoting R.C. 2929.11. Additionally, R.C. 2929.11(B) states:

A sentence imposed for a felony shall be reasonably calculated to
achieve the three overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to
the seriousness of the offender’s conduct and its impact upon the
victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.

{¶ 33} Neither R.C. 2929.11 nor 2929.12 requires a trial court to make any

specific factual findings on the record. State v. Jones, 163 Ohio St.3d 242, 2020-

Ohio-6729, 169 N.E.3d 649, ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-

Ohio-2669, 951 N.E.2d 381, ¶ 31, State v. Arnett, 88 Ohio St.3d 208, 724 N.E.2d

793 (2000). State v. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, ¶ 8.

In the present case, the trial court stated:
 I have considered the principles and purposes of felony sentencing,
[and] all the appropriate recidivism and seriousness factors.

You’re not amenable to community control sanctions on these cases.
I note in the PSI as well that there’s an indication that you are part of
the Heartless Felons. With respect to your mental health issues, I
agree there [are] some drug and alcohol [issues] for sure. I’ve read
the prior competency evaluation, it also indicated a lower IQ,
however, a high chance of malingering your symptoms as well.

{¶ 34} In addition to the statements made during the sentencing hearing,

the trial court incorporated the following language in each of Mitchell’s sentencing

entries:

The court considered all required factors of the law. The court finds
that prison is consistent with the purpose of R. C. 2929.11.

{¶ 35} It is well settled that a trial court’s statement in its sentencing

journal entry that it considered the required statutory factors is enough to fulfill its

obligations under R.C. 2929.11 and 2929.12. State v. Sutton, 8th Dist. Cuyahoga

Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 72, State v. Clayton, 8th Dist.

Cuyahoga No. 99700, 2014-Ohio-112, State v. Pierce, 8th Dist. Cuyahoga No.

111605, 2023-Ohio-528, ¶ 41.

{¶ 36} Mitchell’s argument that the trial court failed to consider substantial

mitigating factors when it imposed maximum sentences is simply not supported

by the record. Although not required, the trial court made specific findings on the

record in consideration of Mitchell’s mitigating evidence.

{¶ 37} Accordingly, the trial court’s sentence is not contrary to law.
 {¶ 38} Judgment is affirmed. Case remanded for the trial court to issue a

corrected sentencing entry, nunc pro tunc, to accurately reflect its findings on each

case number consistent with what occurred during the sentencing hearing.

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.

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

27 of the Rules of Appellate Procedure.

________________________
EMANUELLA D. GROVES, JUDGE

ANITA LASTER MAYS, A.J., and
LISA B. FORBES, J., CONCUR