[Cite as State v. Criswell, 2024-Ohio-1628.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-23-72
PLAINTIFF-APPELLEE,
v.
KEVIN T. CRISWELL, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 2022 CR 0412
Judgment Affirmed
Date of Decision: April 29, 2024
APPEARANCES:
Todd A. Anderson for Appellant
Raymond A. Grogan, Jr. for Appellee
Case No. 9-23-72
WALDICK, J.
{¶1} Defendant-appellant, Kevin Criswell (“Criswell”), brings this appeal
from the October 2, 2023, judgment of the Marion County Common Pleas Court.
Criswell argues that the trial court erred by imposing a twelve-month prison
sentence for his Vehicular Assault conviction and that the trial court erred for
imposing consecutive sentences in this matter. For the reasons that follow, we affirm
the judgment of the trial court.
Background
{¶2} On May 6, 2022, Criswell was operating his vehicle with a BAC of .183
when he drove through a stop sign and struck another vehicle being driven by a
minor. The victim’s vehicle was disabled and the victim had to be extricated and
transported to the hospital.
{¶3} As a result of his actions, Criswell was indicted for Aggravated
Vehicular Assault in violation of R.C. 2903.08(A)(1)(a), a third degree felony
(Count 1); Vehicular Assault in violation of R.C. 2903.08(A)(2), a fourth degree
felony (Count 2); and OVI in violation of R.C. 4511.19(A)(1)(f), a first degree
misdemeanor (Count 3). Criswell originally pled not guilty to the charges.
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{¶4} On July 13, 2023, Criswell entered into a negotiated plea agreement
wherein he agreed to plead guilty to Vehicular Assault and OVI as charged in
Counts 2 and 3 of the indictment. In exchange, the State agreed, inter alia, to dismiss
Count 1 of the indictment, the most serious charge.
{¶5} A sentencing hearing was held on September 24, 2023. After hearing
the arguments of the parties, statements from the victim’s family1, and statements
in support of Criswell, the trial court sentenced Criswell to serve twelve months in
prison on the Vehicular Assault charge and ninety days of local incarceration on the
OVI. Those sentences were ordered to be served consecutively.
{¶6} A judgment entry memorializing Criswell’s sentence was filed October
2, 2023. It is from this judgment that Criswell appeals, asserting the following
assignments of error for our review.
1
At the sentencing hearing, the victim’s mother stated the following:
This event has forever changed our family, and has stolen any peace of mind we’ve had
with our now adult children as they travel. [My son] does not feel the same way about
driving as he used to. After you’ve been hit by a truck, you don’t just recover from that
mentally, and will not only deal with the physical aspects from that accident, but for the
long-term psychological and emotional issues.
***
[My son’s] body really did take a beating. At only 17 years old, a junior in high school, he
experienced serious physical and psychological harm. The Honda Fit that he was driving
was something that he was a proud owner of and loved that car. That car was completely
destroyed in the accident and totaled.
(Tr. at 17-18).
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First Assignment of Error
The trial court erred and abused its discretion when it imposed
consecutive sentences.
Second Assignment of Error
The trial court erred and abused its discretion when it imposed a
12-month prison sentence.
{¶7} For ease of discussion, we elect to address the assignments of error out
of the order in which they were raised.
Second Assignment of Error
{¶8} In his second assignment of error, Criswell argues that the trial court
“abused its discretion” by imposing a twelve-month prison term for his Vehicular
Assault conviction.
Standard of Review
{¶9} Revised Code 2953.08(G)(2) establishes the scope of appellate review
for felony sentences. State v. Passmore, 3d Dist. Hancock No. 5-22-39, 2023-Ohio-
3209, ¶ 64. Under R.C. 2953.08(G)(2), an appellate court may reverse or modify a
sentence only if there is clear and convincing evidence (1) that the trial court’s
findings under R.C. 2929.13(B), R.C. 2929.13(D), R.C. 2929.14(B)(2)(e), R.C.
2929.14(C)(4) or R.C. 2929.20(I) are not supported by the record or (2) that the
sentence is otherwise contrary to law. However, unlike the sentencing statutes
explicitly listed in R.C. 2953.08(G)(2), the Supreme Court of Ohio has held
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that R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court to
modify or vacate a sentence based on its view that the sentence is not supported by
the record under R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, ¶ 31.
Analysis
{¶10} In this case Criswell was sentenced to a twelve-month prison term for
his conviction of Vehicular Assault in violation of R.C. 2903.08(A)(2), a fourth
degree felony. This twelve month prison term was within the appropriate statutory
range for fourth degree felonies. R.C. 2929.14(A)(4).
{¶11} When the trial court ordered Criswell to serve a twelve month prison
term, the trial court specifically indicated it considered the appropriate sentencing
factors, including those in R.C. 2929.11 and R.C. 2929.12. In fact, the trial court
discussed the factors in R.C. 2929.12 at some length on the record, disagreeing with
some of defense counsel’s mitigating arguments. The final judgment entry reflected
that the trial court had considered R.C. 2929.11 and R.C. 2929.12.
{¶12} Criswell now contends that the trial court improperly
weighed/considered/applied the sentencing factors in R.C. 2929.11 and R.C.
2929.12 in fashioning his sentence. However, even if we assumed, without finding,
that the trial court improperly weighed the sentencing factors, under Jones, we have
no authority to modify or vacate a sentence on this basis. Jones at ¶ 31; State v.
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Saunders, 3d Dist. Logan No. 8-23-09, 2023-Ohio-4610, ¶ 11; State v. Stennett, 8th
Dist. Cuyahoga No. 111424, 2022-Ohio-4645, ¶ 12.
{¶13} The record before us confirms that the trial court considered the
overriding purposes of felony sentencing set forth in R.C. 2929.11 and the statutory
factors relating to seriousness and recidivism set forth in R.C. 2929.12. Because the
trial court considered the appropriate factors and the sentence imposed was within
the statutory range of sentencing options, the sentence in this case was not contrary
to law. Therefore, Criswell’s second assignment of error is overruled.
First Assignment of Error
{¶14} In his first assignment of error, Criswell argues that the trial court erred
by imposing consecutive sentences in this matter. More specifically, Criswell argues
that the trial court’s findings to impose consecutive sentences under R.C.
2929.14(C)(4) were clearly and convincingly contrary to law.
Analysis
{¶15} Pursuant to Revised Code 2929.14(C)(4), a trial court may order
multiple prison terms to be served consecutively if certain specific findings are
made. Here, Criswell was ordered to serve a jail term and a prison term
consecutively, thus R.C. 2929.14(C)(4) is simply not implicated and the findings
are not required to be made. State v. Alexander, 8th Dist. Cuyahoga No. 102708,
2016-Ohio-204, ¶ 7; State v. Cunningham, 5th Dist. No. 2022 CA 00008, 2022-
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Ohio-3982, ¶ 60; State v. Coffman, 10th Dist. Franklin No. 18AP-997, 2019-Ohio-
4145, ¶ 13; see State v. Gault, 3d Dist. Logan No. 8-17-31, 2018-Ohio-1682.
{¶16} Importantly, Revised Code 2929.41(B)(3) provides an exception to the
general rule that misdemeanors must be served concurrently with felonies. Coffman
at ¶ 13. Revised Code 2929.41(B)(3) provides, “[a] jail term or sentence of
imprisonment imposed for a misdemeanor violation of * * * 4511.19 of the Revised
Code shall be served consecutively to a prison term that is imposed for a felony
violation of * * * 2903.08 * * * when the trial court specifies that it is to be served
consecutively.” Thus, R.C. 2929.41(B)(3) permits a jail or prison term for a
misdemeanor violation of R.C. 4511.19 to be served consecutively to a prison term
for a violation of R.C. 2903.06 when specified by the trial court. The trial court
specified such a sentence here. Imposition of the sentence is all that was required of
the trial court in order to impose consecutive sentences. Id. Because no further
findings needed to be made, Criswell’s assignment of error is overruled.
{¶17} Nevertheless, we note that the trial court did make findings at the
sentencing hearing and in its final judgment entry as if it were imposing consecutive
prison sentences pursuant to R.C. 2929.14(C)(4). Again, we emphasize that R.C.
2929.14(C)(4) was not implicated because consecutive prison terms were not
imposed; however, since the trial court made the unnecessary findings, we will
address Criswell’s argument to the extent it has relevance to whether the sentence
was clearly and convincingly contrary to law.
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{¶18} Criswell takes issue with the fact that the trial court seemed to find that
all subsections of R.C. 2929.14(C)(4) supported consecutive sentences in this case
even though Criswell was not awaiting trial or under another sanction at the time
the crimes in this case were committed (R.C. 2929.14(C)(4)(a)), and even though
he had no criminal history (R.C. 2929.14(C)(4)(c)). At the sentencing hearing, the
trial court did recite each subsection of R.C. 2929.14(C)(4); however, the trial court
stated at the sentencing hearing that R.C. 2929.14(C)(4) “[s]ection B there is really
the one the Court relies on here.” This subsection cited by the trial court concerns
multiple offenses, and a finding under this subsection to impose consecutive
sentences would be supported by the record if R.C. 2929.14(C)(4) was implicated.
{¶19} Nevertheless, Criswell contends that the trial court’s final judgment
entry finds that all subsections of R.C. 2929.14(C)(4) were present even though the
record does not support the findings. In its final entry, the trial court stated the
following with regard to imposing consecutive sentences:
It is further ORDERED the sentences imposed on the defendant shall
be served consecutive to each other.
In finding that the sentences shall be served consecutively, the Court
finds, pursuant to R.C. 2929.14, that consecutive sentences are
necessary to punish the Defendant or to protect the public from future
crime, and that the sentences are not disproportionate to the
seriousness of the Defendant’s conduct and the danger posed by the
Defendant. The Court further finds that one or more offenses were
committed while the Defendant was awaiting trial, was on community
control sanctions, or was on post-release control. The Court further
finds that 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
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more of the multiple offenses so committed was so great or unusual
that no single prison term for either of the offenses committed as part
of the course of conduct adequately reflects the seriousness of the
Defendant’s conduct. The Court further finds that the Defendant’s
history of criminal conduct demonstrates that consecutive sentences
are necessary to protect the public from future crime by the Defendant.
The Court further finds pursuant to R.C. 2929.41(B)(3) that the
jail term or sentence of imprisonment imposed on the
misdemeanor contained in Count 3 of section 4511.19 SHALL be
served consecutively to the prison term imposed for the felony
contained in Count 2 of section 2903.08 * * *[.]
(Bold in original) (Doc. No. 94).
{¶20} It is true that the record does not support the trial court’s superfluous
and unnecessary findings that Criswell was awaiting trial or on sanctions at the time
he committed these offenses, and that the record does not support that Criswell had
any criminal history. Even accepting that the trial court should not have made these
statements, the trial court’s finding regarding multiple offenses was supported by
the record. Courts have held that where the trial court made an erroneous finding
pursuant to one of the subsections in R.C. 2929.14(C)(4), the error is harmless where
another subsection supports the trial court’s decision. State v. Russell, 11th Dist.
Lake No. 2019-L-138, 2020-Ohio-3243, ¶ 15. Thus to any extent the trial court
made improper findings, which were unnecessary and superfluous to begin with,
they are harmless here.
{¶21} In sum, we find that the trial court did not need to make any findings
under R.C. 2929.14(C)(4) to impose consecutive sentences in this case. To the
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extent that the trial court did make any of the findings, and that they were improper,
they are harmless. For these reasons, Criswell’s first assignment of error is
overruled.
Conclusion
{¶22} Having found no error prejudicial to Criswell in the particulars
assigned and argued, his assignments of error are overruled and the judgment of the
Marion County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/tmm
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