[Cite as State v. Harris, 2016-Ohio-7482.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103803
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ISAIAH HARRIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-593413-A and CR-15-594917-A
BEFORE: Stewart, J., E.A. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: October 27, 2016
ATTORNEY FOR APPELLANT
Gregory T. Stralka
6509 Brecksville Road
P.O. Box 31776
Independence, OH 44131
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Melissa Riley
Kerry A. Sowul
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Isaiah Harris, brings this appeal challenging the trial
court’s order of consecutive sentences. For the reasons that follow, we affirm.
{¶2} The Grand Jury indicted Harris in two separate cases. The first case,
Cuyahoga C.P. No. CR-15-593413-A, charged Harris with two counts of drug trafficking,
two counts of drug possession, and possessing criminal tools, while the second case,
Cuyahoga C.P. No. CR-15-594917-A, charged Harris with three counts of trafficking in
persons, three counts of compelling prostitution, and five counts of promoting
prostitution. Harris entered not guilty pleas in both cases, and proceeded to trial on the
drug case. During trial, the state filed a motion under seal with the court. Although not
discussed in detail on the record, the motion alleged that Harris was contacting testifying
witnesses from jail. Thereafter, in the middle of trial, defense counsel asked the state to
reconsider a plea offer. The state agreed and Harris pleaded guilty to all of the charges
in both cases in exchange for the state’s agreement to recommend a 12-year prison
sentence.
{¶3} The court accepted the guilty pleas and merged the compelling prostitution
counts into the trafficking counts. The state elected to proceed to sentencing on the
trafficking charges whereby the court sentenced Harris to concurrent 15-year prison terms
on each count. Further, the court merged three of the five promoting prostitution charges
into the trafficking charges because the victims in those counts were the same. The court
sentenced Harris to respective 18- and 6-month prison terms on the remaining promoting
prostitution charges and ordered that they be served consecutive to the base 15-year
prison term on the trafficking charges. In CR-15-593413-A, the court sentenced Harris
to separate, but concurrent, 36-month prison terms on Count 1, third-degree drug
trafficking, and Count 2, drug possession. The court further ordered Harris to serve
concurrent 12-month prison terms on the remaining drug trafficking, drug possession, and
possessing criminal tools charges, to be served concurrent with the base 36 months on the
higher felony counts. Lastly, the court ran the two cases consecutive for an aggregate
20-year prison term.
{¶4} In his sole assignment of error, Harris argues that the trial court’s imposition
of consecutive sentences is contrary to law. Specifically, he contends that his sentence is
contrary to law because “the trial court’s entry does not provide any fact specific rationale
why [he] should receive consecutive sentences,” that imposition of consecutive sentences
was excessive in his case, and that the court might have considered an improper, extrinsic
factor when deciding to deviate from the 12 year, recommended sentence by ordering him
to serve 20 years in prison.
{¶5} Although R.C. 2953.08(A)(4) gives defendants the right to appeal an order of
consecutive sentences, appellate courts have very limited power to review such orders.
As delineated in R.C. 2953.08(G)(2)(a), an appellate court cannot review felony
sentencing for an abuse of discretion, rather, the court can increase, reduce, or otherwise
modify a sentence, or can vacate a sentence and remand to the trial court for resentencing,
only if it “clearly and convincingly” finds that (1) “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 that (2) “the sentence is otherwise contrary to
law.” See also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 22 (explaining that “R.C. 2953.08 specifically and comprehensively defines the
parameters and standards — including the standard of review — for felony-sentencing
appeals[,]” and that the statute explicitly states that appellate courts do not review for an
abuse of discretion.).
{¶6} When a court sentences an offender to multiple prison terms, there is a
presumption in favor of concurrent sentences. See R.C. 2929.41(A) (stating, “[e]xcept as
provided in division (B) of this section, division (C) of section 2929.14, or division (D) or
(E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of
imprisonment shall be served concurrently with any other prison term, jail term, or
sentence of imprisonment imposed by a court of this state, another state, or the United
States.”) To overcome the presumption and order consecutive sentences, a trial court
must make certain findings, outlined in R.C. 2929.14(C)(4), on the record at sentencing
and then incorporate those findings in its sentencing entry. State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23, 29.
{¶7} Those findings are: (1) that consecutive sentences are “necessary to protect
the public from future crime or to punish the offender”; (2) “that consecutive sentences
are not disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public”; and (3) one of the following:
(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 post-release 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.
Id.
Although the trial court is required to make the findings for consecutive sentences, there
is no obligation to state on the record its reasons for making the findings. Bonnell at ¶
24, 37.
{¶8} The record reveals that the court made the required findings for imposing
consecutive sentences on the record and then incorporated those findings in the
sentencing entry. While Harris acknowledges this fact, he nevertheless argues that
“merely parroting the language of the statute is insufficient to justify maximum
consecutive sentences,” and argues that the trial court should have stated its specific fact
rationale for ordering consecutive service.1 As explained above, consecutive sentences
may be imposed if the trial court makes the findings under R.C. 2929.14(C)(4) and there
is no requirement that trial courts state their reasons for finding that the consecutive
sentencing factors were met. See Bonnell at ¶ 37. If the findings are made, our review
of consecutive sentences is limited to whether the record clearly and convincingly does
not support the findings. R.C. 2953.08(G)(2)(a). Harris makes no argument on this
point, and our independent review of the record does not lead us to the conclusion that the
record does not support the findings.
In support of his argument, Harris cites to pre-H.B. 86 case law, including State v. Foster,
1
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and State v. Bates, 118 Ohio St.3d 174,
2008-Ohio-1983, 887 N.E.2d 328, which has since been overruled by the Supreme Court of the
United States and legislative enactment. At the time Foster was decided in 2006, the legislature
required that the court make statutorily mandated consecutive sentencing findings and give its
supporting reasons for doing so at the time of sentencing. The court in Foster found that the
{¶9} Harris’s argument that his 20-year prison sentence was excessive in this case
because the minimum sentence adequately reflects the seriousness of the offenses, is
simply not something that this court can address. Essentially, Harris is asking this court
to find that the trial court abused its discretion by sentencing Harris to a prison term
longer than the minimum required term, and to substitute our sentencing decision for that
of the trial court’s. R.C. 2953.08(G)(2) specifically states that appellate courts are not
authorized to review for an abuse of discretion. Therefore, the argument is not well
taken.
requirement of trial courts to make findings and give reasons for imposing consecutive sentences
violated a defendant’s Sixth Amendment right to a trial by jury. Accordingly, the court excised the
portions of the statute — then R.C. 2929.14(E) — that required that the court make statutory findings
and give supporting reasons for imposing consecutive sentences, eliminated the presumption in favor
of concurrent sentences found in R.C. 2929.41(A), and held that courts have discretion to impose
consecutive sentences. Thereafter, the Supreme Court of the United States issued its decision in
Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), which held that the statutory
requirement on judges in a jury trial to make findings before imposing consecutive sentences, is
constitutional. In reaction to this ruling, the Ohio General Assembly reenacted, under H.B. 86, the
requirement that trial courts make statutory findings before imposing consecutive sentences — now
contained in R.C. 2929.14(C)(4). However, the reenactment no longer required that the court give its
reasons for the findings. See Bonnell at ¶ 4.
{¶10} Lastly, Harris argues that the record gives the appearance that the court
relied on the state’s motion about his alleged contact with testifying witnesses when
deciding to deviate from a 12-year sentence recommended by defense counsel and the
state. We disagree. The court explicitly noted on the record that it was deviating from
the 12-year recommended sentence because the court felt that the harm to each victim was
so severe that a 12-year sentence did not adequately reflect the seriousness of the
offenses.
{¶11} Judgment affirmed.
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.
______________________________________________
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, P.J. and
ANITA LASTER MAYS, J., CONCUR