State v. McKinney , 2022 Ohio 849 ( 2022 )

[Cite as State v. McKinney, 2022-Ohio-849.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210276
TRIAL NO. B-1903779
Plaintiff-Appellee, :
vs. :
O P I N I O N.
JULIUS MCKINNEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 18, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Julius McKinney appeals the trial court’s
imposition of consecutive sentences. Because the defendant’s criminal history
supports the trial court’s finding that consecutive sentences were necessary, we
affirm the imposition of consecutive sentences.
I. Facts and Procedure
{¶2} In May 2019, McKinney was speeding on Colerain Avenue in
Cincinnati, Ohio, with David Coffman in the passenger seat. As McKinney
accelerated to 88 m.p.h., he collided with an SUV driven by Vicki Noe. McKinney’s
car then ricocheted off Noe’s SUV and veered into oncoming traffic, where he struck
a car occupied by Richard and Lyneltea Ritzi. Coffman, Noe, and the Ritzis suffered
serious, permanent injuries.
{¶3} Two years later, McKinney pleaded guilty to four counts of vehicular
assault in violation of R.C. 2903.08(A)(2)(b), all fourth-degree felonies.
{¶4} At the sentencing hearing, the court sentenced McKinney to four
consecutive 15-month sentences, for a total of 60 months of incarceration. The court
described the collision as “a road rage incident” that was “consistent with
[McKinney’s] prior conduct.” The court reviewed McKinney’s criminal history, which
included countless license suspensions, seven convictions for driving with a
suspended license, numerous speeding violations, and convictions for breaking and
entering.
{¶5} The court informed McKinney that consecutive sentences were
“necessary to protect the public and/or punish the defendant” and “not
disproportionate to the seriousness of the conduct and the danger he poses to the
public.” Next, the court found that the offenses were committed in “one or more
2
OHIO FIRST DISTRICT COURT OF APPEALS
courses of conduct” and that “no single prison term * * * would adequately reflect the
seriousness of [McKinney’s] conduct.”
{¶6} Finally, the court found that McKinney’s criminal history “shows a
need to protect the public. There is one incident after another of just driving, you
know, just thumbing your nose at the traffic laws. And that all culminated in this
incident. The fact that you got away with this so many times, and finally it added up
and you ended up hurting some people very, very severely.”
{¶7} In its sentencing entry, the court repeated the need to protect the
public and punish McKinney. In addition, the court found 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 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
defendant’s conduct.
***
The defendant’s criminal history shows a need to protect the public
from future crime by the defendant.
{¶8} McKinney appeals.
II. Law and Analysis
{¶9} In his sole assignment of error, McKinney challenges the sentencing
court’s imposition of consecutive sentences. McKinney acknowledges that he did not
object to the imposition of consecutive sentences at the sentencing hearing, and
therefore, has forfeited all but plain error. State v. White, 1st Dist. Hamilton No. C-
190589, 2021-Ohio-1644, ¶ 54, quoting State v. Hessler, 90 Ohio St.3d 108, 121, 734
3
OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 1237 (2000); see Crim.R. 52(B). A trial court commits plain error if 1.) an
error occurred, 2.) the error was plain and obvious, and 3.) the error affected the
outcome of the trial. White at ¶ 54, citing State v. Hayes, 2020-Ohio-5322, 162
N.E.3d 947, ¶ 41 (1st Dist.).
{¶10} An appellate court reviews a trial court’s imposition of consecutive
sentences under R.C. 2953.08(G)(2)’s standard. We must “clearly and convincingly”
find that 1.) “the record does not support the sentencing court’s findings” that
consecutive sentences were necessary under R.C. 2929.14(C)(4); or 2.) “the sentence
is contrary to law.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d
824, ¶ 4. A sentence is contrary to law when it is “in violation of statute or legal
regulations at a given time.” State v. Jones, 162 Ohio St.3d 242, 2020-Ohio-6729,
169 N.E.3d 649, ¶ 34, citing Black’s Law Dictionary 328 (6th Ed.1990).
{¶11} Ordinarily, multiple offenses are presumed to run concurrently unless
the trial court makes the necessary findings under R.C. 2929.14(C)(4). First, the
court must find that consecutive terms are necessary to protect the public or punish
the defendant. R.C. 2929.14(C)(4). Then, the court must find that consecutive
sentences are not disproportionate to the seriousness of the defendant’s conduct or
the danger posed to the public. Id.{¶12} Finally, the court must find that one of three aggravating factors in
R.C. 2929.14(C)(4)(a)-(c) is present. State v. Bronson, 1st Dist. Hamilton No. C-
200151, 2021-Ohio-838, ¶ 7, citing State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-
5584, 172 N.E.3d 8, ¶ 205. The court must find that:
1.) the offenses were committed by the defendant while awaiting trial or sentencing,
under community control, or under post-release control. R.C. 2929.14(C)(4)(a);
4
OHIO FIRST DISTRICT COURT OF APPEALS
2.) “two of the multiple offenses were committed as part of one or more courses of
conduct” and the harm was so great or unusual as to require consecutive
sentences. R.C. 2929.14(C)(4)(b); or
3.) the defendant’s “history of criminal conduct demonstrates” a need to protect the
public from future crime. R.C. 2929.14(C)(4)(c).
{¶13} While these statutory findings must be made at a sentencing hearing
and incorporated into a sentencing entry, “[t]he trial court need not recite the
findings verbatim.” State v. Pettus, 1st Dist. Hamilton No. C-170712, 2019-Ohio-
2023, ¶ 65, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 29. Rather, this court “must be able to discern from the record that the court
engaged in the requisite analysis and determine that the record contains evidence to
support the findings.” Pettus at ¶ 65, citing Bonnell at ¶ 29.
{¶14} The trial court found that consecutive sentences were necessary to
protect the public and punish the defendant, and were not disproportionate to the
seriousness of the defendant’s conduct and the danger posed to the public. Next, the
trial court found consecutive sentences were necessary as the offenses were
committed in one or more courses of conduct and because McKinney’s criminal
history demonstrated a need to protect the public.
{¶15} McKinney challenges the trial court’s imposition of consecutive
sentences under R.C. 2929.14(C)(4)(b) and 2929.14(C)(4)(c). First, he contends that
the record does not support the trial court’s finding that the offenses in question
were committed in a course of conduct pursuant to R.C. 2929.14(C)(4)(b). Second,
while McKinney concedes that he has a criminal history, he argues that his record
contains no incidents of road rage to implicate R.C. 2929.14(C)(4)(c).
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} At the sentencing hearing, the court found the 2019 collision
“consistent with [McKinney’s] prior conduct.” The court recounted McKinney’s
criminal history, which included copious license suspensions, numerous citations for
speeding, numerous citations for driving under a suspended license, and convictions
for possessing criminal tools, drug possession, and breaking and entering. These
findings support the trial court’s conclusion that McKinney’s criminal history shows
a need to protect the public. See State v. Marshall, 1st Dist. Hamilton Nos. C-190748
and C-190758, 2021-Ohio-816, ¶ 49 (“As long as we can discern that the trial court
engaged in the correct analysis and the record contains evidence to support the
findings, consecutive sentences will be upheld.”). In light of McKinney’s history, we
cannot say that the imposition of consecutive sentences was clearly and convincingly
unsupported by the record. See R.C. 2953.08(G)(2).
{¶17} Because the sentencing court made the necessary findings under R.C.
2929.14(C)(4)(c) to impose consecutive sentences, it is not necessary for this court to
determine whether McKinney’s offenses were committed as part of one or more
courses of conduct under R.C. 2929.14(C)(4)(b).
III. Conclusion
{¶18} The trial court did not err when it imposed consecutive sentences for
multiple counts of vehicular assault and we overrule the single assignment of error.
The trial court’s judgment is affirmed.
Judgment affirmed.
ZAYAS, P.J., and CROUSE, J., concur.
6
OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
7