[Cite as State v. Townsend, 2022-Ohio-692.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110525
v. :
ALBERT TOWNSEND, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: March 10, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-614508-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Melissa Riley, Assistant Prosecuting
Attorney, for appellee.
Michael Gordillo, for appellant.
LISA B. FORBES, J.:
Appellant, Albert Townsend (“Townsend”), appeals the trial court’s
order sentencing him to 56 years to life in prison following a resentencing hearing.
After reviewing the law and pertinent facts of the case, we affirm Townsend’s
sentence but remand to the trial court to issue a nunc pro tunc entry consistent with
this opinion.
I. Facts and Procedural History
Townsend was charged in a 16-count indictment following the sexual
assaults of three separate victims between January 20, 2003, and November 27,
2006. The case proceeded to a jury trial where the evidence demonstrated that Jane
Doe I was a 17-year-old high school senior when Townsend abducted her while she
was walking to her brother’s house. Townsend took her to his home and raped her.
A rape-kit examination was performed on Jane Doe I, and Townsend’s DNA was
recovered. Townsend denied raping Jane Doe I claiming, “I did not assault [Jane
Doe I] at all. Don’t know [Jane Doe I] and * * * [s]he don’t know me.”
Jane Doe II was 13 years old at the time of the attack and was the
daughter of one of Townsend’s friends. She testified that Townsend broke into her
home, claimed to have a gun, and raped her. As a result of the attack, Jane Doe II
became pregnant. Jane Doe II terminated the pregnancy. Townsend’s DNA
matched the DNA of the fetus. Townsend denied ever having sexual intercourse
with Jane Doe II.
Jane Doe III, a 17 year old, lived with Townsend and his wife when he
raped her. Like the other two victims, Townsend denied ever having sexual contact
with Jane Doe III.
Following the jury trial, Townsend was found guilty of:
five counts of rape, two counts of kidnapping with sexual motivation
specifications, and one count each of complicity to commit rape,
attempted rape, and gross sexual imposition. The rape, complicity,
attempted rape and gross sexual imposition convictions were
accompanied by findings that Townsend is a sexually violent predator.
State v. Townsend, 8th Dist. Cuyahoga No. 107186, 2019-Ohio-1134, ¶ 14
(“Townsend I”).
At a separate sentencing hearing, “the court merged Count 12 with
Count 9 and sentenced Townsend as follows: Counts 1, 2, 3, 7, and 11, five years to
life in prison; Counts 9, 13, and 14, 10 years to life in prison; and Count 15, one year
in prison. The court ordered all sentences to run consecutive for a total of 56 years
to life in prison and classified Townsend as a sexual predator.” Id. at ¶ 15.
Townsend appealed his convictions and sentences. On appeal, this
court found that the trial court erred in sentencing Townsend to sexually violent
predator specifications for the crimes against Jane Doe I and Jane Doe II and
remanded to the trial court for resentencing on Counts 1, 2, 3, 7, 9, 11, and 12.1
Id. at ¶ 67.
At the resentencing hearing the trial court found that “consecutive
terms are necessary to protect the public.” The court explained,
[Townsend ] is a serial rapist. He has raped three separate women.
Three different incidents. So obviously, his criminal history shows that
consecutive terms are necessary to protect the public, and obviously the
harm he has had to the community * * * is so great that a single term
would not reflect the seriousness of his conduct, and it would demean
the significance of his conviction.
1In Townsend I, this court also remanded Count 10 to be resentenced; however, Townsend
was found not guilty and was not sentenced on that count.
The trial court continued, “the harm he has created is so great and
unusual that a single term would not adequately reflect the seriousness of the
conduct” and “the amount of victims.” Though Townsend’s sentence would include
a life tail for the crimes committed against Jane Doe III,2 the court noted that if it
were to sentence the current counts to run concurrently to that sentence it would
“[demean] the seriousness of the offense * * *.” Additionally, the court found “this
defendant has a very substantial troubling violent criminal record. He has been
indicted nine times in Cuyahoga County, if I’m not mistaken. I believe he’s been
convicted eight times.” The court noted that two of those convictions were
aggravated robberies.
The trial court merged Counts 9 and 12 and sentenced Townsend to
five years in prison on Counts 1, 2, 3, 7, and 11. Townsend was sentenced to ten years
in prison on Count 9. Each count was sentenced consecutively, for a total of 35 years
in prison. Further, Townsend’s 35-year prison sentence was ordered to run
consecutively to the 21 years to life prison sentence for the crimes committed against
Jane Doe III that were not subject to resentencing. In total, Townsend was
sentenced to 56 years to life in prison.
II. Law and Analysis
In his sole assignment of error, Townsend challenges the trial court’s
imposition of consecutive sentences, arguing his “sentence is excessive, contrary to
2 Townsend’s sentence for crimes committed against Jane Doe III of 21 years to life are not
at issue in this appeal.
law, and violates due process because the trial court imposed consecutive terms not
supported by the record or the requisite statutory findings.” We disagree.
To impose consecutive prison sentences the court must make three
findings: first, the court must find that consecutive sentences are “necessary to
protect the public from future crime or to punish the offender.” R.C. 2929.14(C)(4).
Next, the court must find “that consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender poses to the
public.” Id. Finally, the court must find that at least 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 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.
To make the requisite statutory findings, “‘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). The trial court must “incorporate its
findings into its sentencing entry.” Bonnell at ¶ 37. The trial court is not required
to make a “talismanic incantation of the words of the statute.” Id.
R.C. 2953.08(G)(2), which guides our review of consecutive felony
sentences, “compels appellate courts to modify or vacate sentences if they find by
clear and convincing evidence that the record does not support any relevant findings
under * * * (C)(4) of section 2929.14[.]” State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 22; see also State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649, ¶ 28; State v. Roberts, 2017-Ohio-9014, 101 N.E.3d
1067, ¶ 10 (8th Dist.) (“[i]f the court made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we ‘clearly and
convincingly’ find that the record does not support the court’s findings,” quoting
R.C. 2953.08(G)(2)); State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 19 (8th
Dist.).
The statute is written in the negative; that is, an appellate court does
not need to clearly and convincingly find that the record supports the
findings in order to affirm, but instead must clearly and convincingly
find that the record does not support the findings in order to reverse or
modify a sentence.
Roberts at ¶ 10.
Townsend argues that the trial court’s findings at the resentencing
hearing are insufficient because (1) there are no “findings with respect to
proportionality of the consecutive sentences to the offender’s conduct and the threat
he or she poses to society,” and (2) “the record clearly and convincingly does not
support the trial courts alleged finding that consecutive sentences were necessary
for the public’s protection or to punish the offender.”
We disagree with Townsend that there were no findings with respect
to the proportionality of consecutive sentences and Townsend’s conduct. This court
has upheld the imposition of consecutive sentences when “‘[t]he trial court’s
statements on the record indicate that it considered proportionality both with regard
to the seriousness of [the defendant’s] conduct and the danger he poses to the
public.’” State v. McGowan, 8th Dist. Cuyahoga No. 105806, 2018-Ohio-2930,
¶ 20, citing State v. Morris, 2016-Ohio-7614, 73 N.E.3d 1010, ¶ 34 (8th Dist.).
Further, the Ohio Supreme Court held in Bonnell that when a trial court imposes
consecutive sentences “a word-for-word recitation of the language of the statute is
not required, and as long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains evidence
to support the findings, consecutive sentences should be upheld.” Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29. See also State v. Wilson, 8th
Dist. Cuyahoga No. 107313, 2019-Ohio-1245, ¶ 18 (Upholding the imposition of
consecutive sentences when the reviewing court could discern from the record that
the trial court engaged in the proper analysis without the use of the exact statutory
language).
While the trial court did not explicitly mention the word
“proportionality” or specifically address the “threat” that Townsend posed, the
totality of the court’s statements demonstrate that it did make findings regarding
both. The trial court explicitly stated that because Townsend had been found guilty
of sexually assaulting three separate women on three separate occasions, his
conduct demonstrated a need to protect the public through the imposition of
consecutive prison sentences. We can discern from the record that the court found
consecutive sentences were not disproportionate to the danger Townsend posed to
the public.
Townsend further argues that the record does not support the trial
court’s finding that consecutive sentences are necessary to protect the public or to
punish him when he was already subject to a sentence of 21 years to life in prison for
the crimes committed against Jane Doe III. We do not find this argument
compelling.
In support of his argument, Townsend highlights the trial court’s
statement that it was “extremely doubtful” that Townsend would be released from
prison after serving his sentence of 21 years to life. However, this reliance is
misplaced. The court made the foregoing statement when it was advising
Townsend, a 54-year-old man at the time of resentencing, about his possibility of
parole after he served 56 years in prison. The court did not make the statement in
connection to Townsend’s likelihood of release after serving his sentence of 21 years
to life.
Further, the record is clear that Townsend sexually assaulted three
women on three different occasions. His relationship and manner of choosing those
victims was different each time. Jane Doe I was a woman he abducted before
sexually assaulting her. Jane Doe II was a 13-year-old girl who was the daughter of
one of Townsend’s friends. Jane Doe III was a 17-year-old woman who lived with
Townsend and his wife when he sexually assaulted her. The sentencing court found
these facts significant and noted the court’s concern with Townsend’s multiple
sexual assaults on various victims at sentencing. The court also commented on
Townsend’s history of prior indictments and convictions, including at least two
violent felonies. Therefore, we cannot say that because Townsend was already
serving 21 years to life in prison for the sexual assault of Jane Doe III the record
clearly and convincingly does not support the court’s findings and decision to
impose consecutive sentences.
However, upon review of the resentencing journal entry, it is
apparent that the trial court did not incorporate into the journal entry the requisite
statutory findings it made at the resentencing hearing in support of consecutive
sentences. The journal entry simply states, “court placed on the record
2929.14(E)(4) in regards to consecutive sentence.” We note at the outset that
R.C. 2929.14(E)(4) does not relate to consecutive sentences. The state asserts that
this was simply a clerical error, and the court is referencing R.C. 2929.14(C)(4),
which does relate to consecutive sentences. Notwithstanding, the court did not
incorporate any of its findings into the journal entry, and the mention of
R.C. 2929.14(C)(4) does not satisfy the requirements. Bonnell, 140 Ohio St.3d 209,
at syllabus. However, because the trial court did, in fact, make the required findings
at Townsend’s April 2021 resentencing hearing, the journal entry may be corrected
through a nunc pro tunc entry. See State v. Hernandez, 8th Dist. Cuyahoga
No. 106483, 2018-Ohio-3672, ¶ 18.
We do not find that Townsend’s sentence is contrary to law, nor do
we find that the trial court’s findings are unsupported by the record. Having found
no merit to his arguments, Townsend’s assignment of error is overruled. However,
this case is remanded to the trial court for the limited purpose of reflecting its
findings supporting the imposition of consecutive sentences in its journal entry.
Judgment affirmed and remanded to the trial court for the limited
purpose of incorporating its findings to support the imposition of consecutive
sentences into its journal entry.
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.
LISA B. FORBES, JUDGE
ANITA LASTER MAYS, P.J., and
EILEEN T. GALLAGHER, J., CONCUR