State v. Fleming , 2023 Ohio 961 ( 2023 )

[Cite as State v. Fleming, 2023-Ohio-961.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-48
:
v. : Trial Court Case No. 20-CR-0416
:
JAMAL L. FLEMING : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on March 24, 2023
...........
IAN A. RICHARDSON, Attorney for Appellee
MARY ADELINE R. LEWIS, Attorney for Appellant
.............
HUFFMAN, J.
{¶ 1} Upon remand from this court for resentencing, the trial court sentenced Jamal
L. Fleming on one count of aggravated possession of drugs and one count of possession
of cocaine to 12 months for each offense. It ordered the sentences to be served
consecutively, for an aggregate term of 24 months. Fleming appeals, and the State
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concedes error, as the trial court failed to determine Fleming’s jail-time credit. The
matter must be reversed in part and remanded so that the court can address jail-time
credit by specifying the total number of days that Fleming earned as of the date of his
sentencing hearing and giving Fleming an opportunity to be heard on this issue. The
judgment of the trial court is affirmed in all other respects.
{¶ 2} On April 14, 2021, Fleming was found guilty, following a jury trial, on one
count of aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2) (Count 1), a
felony of the fourth degree; one count of aggravated possession of drugs (Count 2), in
violation of R.C. 2925.11(A), a felony of the fifth degree; one count of trafficking in cocaine
(Count 3), in violation of R.C. 2925.03(A)(2), a felony of the fifth degree; and possession
of cocaine, (Count 4), in violation of R.C. 2925.11(A), a felony of the fifth degree. After
merging the possession and trafficking charges, the court sentenced Fleming to 18
months on Count 1 and to 12 months on Count 3, and it ordered that the sentences be
served consecutively “given the defendant’s history of criminal conduct.”
{¶ 3} On Fleming’s direct appeal, this Court determined that his convictions for
trafficking in cocaine and aggravated trafficking in drugs were based upon insufficient
evidence. State v. Fleming, 2d Dist. Clark No. 2021-CA-40, 2022-Ohio-1876, ¶ 55.
This Court determined that the “State’s evidence established that Fleming was in
possession of a single baggie containing a small amount of drugs when he was pulled
over by a Springfield police officer on April 15th. Nothing in the circumstances
surrounding the April 15, 2020 incident suggested that Fleming was engaged in drug
trafficking.” Id. at ¶ 52. This Court reversed the judgment of the trial court and
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remanded the matter for resentencing on the possession of cocaine and aggravated
possession of drugs offenses. Id. at ¶ 58.
{¶ 4} The record reflects that, at the resentencing hearing, the court noted that
Fleming had “previously served prison terms.” We note that a presentence investigation
report was not ordered herein. The court found that “consecutive sentences are
necessary to protect the public from future crimes, to punish the Defendant, and [are] not
disproportionate to the seriousness of his conduct and the danger he poses to the public
and that they are necessary to protect the public from future crime by the Defendant given
his history of criminal conduct.”
{¶ 5} The court’s July 5, 2022, judgment entry of conviction provided:
Findings
The Court considered the record, oral statements of counsel, the
defendant’s statement, and the principles and purposes of sentencing
under Ohio Revised Code Section 2929.11, and then balanced the
seriousness and recidivism factors under Ohio Revised Code Section
2929.12. The Court also considered the defendant’s criminal history.
The Court found, pursuant to Ohio Revised Code Section
2929.13(B)(1)(b)(ix), that it has the discretion to impose a prison term upon
the defendant because he has previously served prison terms.
The Court found, pursuant to Ohio Revised Code Section
2929.13(B)(1)(b)(iii), that it has the discretion to impose a prison term upon
the defendant because he violated two conditions of his bond, to-wit: He
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failed to appear for disposition on May 4, 2021 and committed the felony of
criminal escape.
The Court found, pursuant to Ohio Revised Code Section
2929.14(C)(4), that consecutive sentences are (1) necessary to protect the
public from future crime and to punish the defendant, (2) not
disproportionate to the seriousness of the defendant’s conduct and to the
danger the defendant poses to the public, and (3) necessary to protect the
public from future crime by the defendant given the defendant’s history of
criminal conduct.
{¶ 6} Fleming asserts two assignments of error on appeal. His first assignment
of error is as follows:
THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE
SENTENCES WAS NOT SUPPORTED BY JUDICIAL FACT FINDING
NECESSARY TO OVERCOME THE PRESUMPTION OF CONCURRENT
SENTENCING.
{¶ 7} Fleming argues that the trial court “has to at a minimum state on the record
some justification for their [sic] decision to go against the presumption of concurrent
terms. In this case, the trial Court judge in essence read the statute word for word and
provided no justification for its reasoning.” According to Fleming, while “the trial Court
was not required to make a finding on the record as to the value [it] placed on certain prior
offenses that justify this decision, [it] must state on the record some justification for making
that finding that includes at a minimum the mere existence of a qualifying criminal record.”
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Fleming argues that the “question is not whether or not [his] criminal history was enough
to justify this finding, but rather, whether it existed at all.” He asserts that the trial court
should have, “at a minimum, made a record supporting [its] decision that included the
existence of a prior record.”
{¶ 8} The State responds that the “trial court made the statutory findings, and [it]
found that [Fleming’s] history of criminal conduct demonstrates consecutive sentences
are necessary to protect the public.” According to the State, Fleming’s “prior criminal
history and felony convictions were put on the record in his initial sentencing hearing,”
and “the same trial judge presided over both the original sentencing hearing and the
resentencing hearing.” The State concludes that the “imposition of consecutive
sentences is not clearly and convincingly unsupported by the record.”
{¶ 9} We initially note:
We have said that “a trial court may rely on ‘a broad range of
information’ at sentencing.” State v. Bodkins, 2d Dist. Clark No. 10-CA-38,
2011-Ohio-1274, ¶ 43, quoting State v. Bowser, 186 Ohio App.3d 162,
2010-Ohio-951, 926 N.E.2d 714, ¶ 13 (2d Dist.). “The evidence the court
may consider is not confined to the evidence that strictly relates to the
conviction offense because the court is no longer concerned * * * with the
narrow issue of guilt.” (Citation omitted.) Bowser at ¶ 14. “Among other
things, a court may consider hearsay evidence, prior arrests, facts
supporting a charge that resulted in an acquittal, and facts related to a
charge that was dismissed under a plea agreement.” (Citation omitted.)
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Bodkins at ¶ 43. Even “ ‘[u]nindicted acts * * * can be considered in
sentencing without resulting in error when they are not the sole basis for the
sentence.’ ” State v. Cook, 8th Dist. Cuyahoga No. 87265, 2007-Ohio-625,
¶ 69, quoting State v. Bundy, 7th Dist. Mahoning No. 02 CA 211, 2005-
Ohio-3310, ¶ 86.
State v. McNichols, 2d Dist. Clark No. 2021-CA-52, 2022-Ohio-3076, ¶ 10.
{¶ 10} The Ohio Supreme Court recently discussed consecutive sentencing at
length in State v. Gwynne, Ohio Slip Opinion No. 2022-Ohio-4607, __ N.E.3d __:
When a person is sentenced for having committed multiple offenses,
the presumption is that those sentences will be imposed concurrently, not
consecutively. See R.C. 2929.41(A). This is the general rule of law
decreed by our state legislature. See id; see also State v. Polus, 145 Ohio
St.3d 266, 2016-Ohio-655, 48 N.E.3d 553, ¶ 10. There are, however,
exceptions. * * * See Polus at ¶ 10 (“[t]he first sentence of R.C.
2929.41(A) enacts the general rule requiring concurrent sentencing with
only clearly delineated exceptions”); State v. Hitchcock, 157 Ohio St.3d 215,
2019-Ohio-3246, 134 N.E.3d 164, ¶ 21 (“[t]he general principle set forth in
the Revised Code is that concurrent sentences are the default and
consecutive sentences are the exception”). For the exception under R.C.
2929.14(C)(4) to apply and before the court imposes consecutive
sentences, it must make specific findings which are delineated in the
statute. Specifically, the trial court must find that “the consecutive service
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is necessary to protect the public from future crime or to punish the
offender.” Id. It must also 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
at least 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.
See id.R.C. 2929.14(C)(4) reflects the General Assembly's understanding
that while the rule is that a trial court is to impose sentences concurrently,
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there may be occasions when it is permissible for the trial court to impose
sentences consecutively. Therefore, the legislature gave trial courts some
leeway to impose sentences consecutively, but only in specified
circumstances, set forth in R.C. 2929.14(C)(4). See State v. Bates, 118
Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 15-16; see also State
v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 10,
abrogated on other grounds by State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856, 845 N.E.2d 470. But that is not all. The legislature provided
defendants with the means to challenge their consecutive sentences on
appeal: R.C. 2953.08(G)(2)(a) states that an appellate court may increase,
reduce, or otherwise modify a sentence or that it may vacate the sentence
and remand the case for resentencing when it clearly and convincingly finds
that the record does not support the sentencing court's findings under R.C.
2929.14(C)(4).
Id. at ¶ 10-11.
{¶ 11} Gwynne set forth the following “practical guidance” for consecutive-
sentence review:
The first step in consecutive-sentence review is to ensure that the
consecutive-sentence findings under R.C. 2929.14(C)(4) have been
made—i.e., the first and second findings regarding necessity and
proportionality, as well as the third required finding under R.C.
2929.14(C)(4)(a), (b), or (c). If the trial court fails to make these findings,
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and that issue is properly raised on appeal, then the appellate court must
hold that the order of consecutive sentences is contrary to law and either
modify the sentence or vacate it and remand the case for resentencing.
See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
¶ 36-37; see also State v. Jones, 93 Ohio St.3d 391, 399, 754 N.E.2d 1252(2001), abrogated on other grounds by State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470; R.C. 2953.08(G)(2)(b).
If the appellate court determines that the R.C. 2929.14(C)(4)
consecutive-sentence findings have been made, the appellate court may
then determine whether the record clearly and convincingly supports those
findings. Depending on the appeal and the arguments raised, an appellate
court may be asked to review only one of the trial court's findings. Or it
may be asked to review two or more of the findings. The point here is that
if even one of the consecutive-sentence findings is found not to be
supported by the record under the clear-and-convincing standard provided
by R.C. 2953.08(G)(2), then the trial court's order of consecutive sentences
must be either modified or vacated by the appellate court. See R.C.
2953.08(G)(2).
As we have stated above, the appellate standard of review under
R.C. 2953.08(G)(2) is not whether the trial court abused its discretion when
it imposed consecutive sentences and intermediate deference to the trial
court's findings is not required. An appellate court's review of the record
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and findings is de novo with the ultimate inquiry being whether it clearly and
convincingly finds—in other words, has a firm conviction or belief—that the
evidence in the record does not support the consecutive-sentence findings
that the trial court made. To reiterate, R.C. 2953.08(G)(2)’s clear-and-
convincing standard does not permit—much less require or expect—an
appellate court to modify or vacate an order of consecutive sentences only
when it is unequivocally certain that the record does not support the
findings. It requires that the appellate court vacate or modify the order if,
upon review of the record, the court is left with a firm belief or conviction
that the findings are not supported by the evidence.
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. 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 upon which these
findings rest.
The second requirement is that whatever evidentiary basis there is,
that it be adequate to fully support the trial court's consecutive-sentence
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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. An appellate court may not, for example,
presume that because the record contains some evidence relevant to and
not inconsistent with the consecutive-sentence findings, that this evidence
is enough to fully support the findings. As stated above, R.C.
2953.08(G)(2) explicitly rejects this type of deference to a trial court's
consecutive-sentence findings. Instead, 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, which includes the number of consecutive
terms and the aggregate sentence that results.
Gwynne, Ohio Slip Opinion No. 2022-Ohio-4607, __ N.E.3d __, at ¶ 25-29.
{¶ 12} Gwynne concluded that “R.C. 2929.14(C)(4) requires trial courts to consider
the overall number of consecutive sentences and the aggregate sentence to be imposed
when making the necessity and proportionality findings required for the imposition of
consecutive sentences.” Id. at ¶ 31. Finally, the Court held that “appellate review of
consecutive sentences under R.C. 2953.08(G)(2) does not require deference to the trial
court’s findings under R.C. 2929.14(C)(4).” Id.
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{¶ 13} As the State asserts, the same judge who imposed Fleming’s original
sentence also sentenced him upon remand and was familiar with Fleming’s criminal
history. At his original July 7, 2021 sentencing, the following exchange occurred without
objection:
THE COURT: Do you have any evidence of the defendant’s prior
criminal record?
[THE PROSECUTOR]: * * * I’ll pull it up.
I show the defendant was convicted of possession of drugs * * * in
Clark County Case #00-CR-342. It looks like he was sentenced to eleven
months on that case.
It also looks like in 2002, he was convicted of having weapons while
under disability.
And in 2004, convicted of improperly discharging a firearm * * * into
or at a habitation.
And I see a previous conviction for a possession of an F4, which I
believe to be drugs. Yes, felony conviction of drugs in 2008, Judge. This
Case #08-CR-60, Clark County, one year three months.
There are other misdemeanor offenses on the defendant’s record,
but that is all, I believe, for convictions. * * *
{¶ 14} Pursuant to our de novo review of Fleming’s consecutive sentences, and as
set forth above, we conclude that the trial court made the necessary consecutive-
sentence findings under R.C. 2929.14(C)(4). We further cannot conclude that the record
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clearly and convincingly does not support the findings as they pertained to the sentencing
court’s order on each count. There is evidentiary support in the record for the court’s
finding that Fleming’s history of criminal conduct demonstrated that consecutive
sentences were necessary to protect the public from future crime by him. As this Court
noted in Fleming’s direct appeal, while there was insufficient evidence of drug trafficking
by Fleming on April 15, 2020, the State’s evidence at trial “established that, up to two
weeks prior to the date at issue, Fleming was actively engaged in drug trafficking. His
drug marketing activities included the sale of methamphetamine and cocaine * * * .”
Fleming, 2d Dist. Clark No. 2021-CA-40, 2022-Ohio-1876, at ¶ 53. The trial court also
noted that Fleming had committed the offense of escape. After reviewing the entire
record, and in the absence of a firm conviction or belief that the evidence does not support
the court’s specific findings to impose consecutive sentences pursuant to R.C.
2929.14(C)(4)(c), Fleming’s first assignment of error is overruled.
{¶ 15} Fleming’s second assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT FAILED TO DETERMINE
THE APPELLANT’S JAIL TIME CREDIT PRIOR TO HIS SENTENCING
AND GIVE HIM THE OPPORTUNITY TO BE HEARD ON THE ISSUE.
{¶ 16} The record reflects that the court did not address Fleming’s jail-time credit
at his resentencing. The judgment entry of conviction awarded “jail and [Ohio
Department of Rehabilitation and Corrections] credit from August 13, 2020 to November
19, 2020 and July 5, 2021 until present.”
{¶ 17} The State concedes that “the trial court did not adequately calculate the jail-
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time credit” and that it was required to “reduce the amount of credit to a number of days,
as well as provide an opportunity for Defendant to be heard regarding this calculation.”
{¶ 18} R.C. 2949.08 provides, in part:
(B) The record of the person's conviction shall specify the total number of
days, if any, that the person was confined for any reason arising out of the
offense for which the person was convicted and sentenced prior to delivery
to the jailer, administrator, or keeper under this section. The record shall
be used to determine any reduction of sentence under division (C) of this
section.
(C)(1) If the person is sentenced to a jail for a felony or a misdemeanor, the
jailer in charge of a jail shall reduce the sentence of a person delivered into
the jailer's custody pursuant to division (A) of this section by the total
number of days the person was confined for any reason arising out of the
offense for which the person was convicted and sentenced, including
confinement in lieu of bail while awaiting trial, confinement for examination
to determine the person's competence to stand trial or to determine sanity,
confinement while awaiting transportation to the place where the person is
to serve the sentence, and confinement in a juvenile facility.
{¶ 19} In State v. Windsor, 2d Dist. Clark No. 2021-CA-25, 2022-Ohio-1785, ¶ 7-
10, this Court noted as follows:
In State v. Wade, 2d Dist. Clark No. 2015-CA-45, 2015-Ohio-5171,
we held that the trial court had erred by awarding jail-time credit “from
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November 30, 2014 until conveyance to the penitentiary system.” Id. at
¶ 14-15. We found that awarding jail-time credit in such a manner was
erroneous because R.C. 2949.08(B) specifies that the record of the
person's conviction “ ‘shall specify the total number of days, if any, that the
person was confined’ for the offense prior to his conviction and ‘prior to
delivery to the jailer, administrator, or keeper.’ ” (Emphasis sic.) Id. at ¶ 14,
quoting R.C. 2949.08(B). Therefore, we held that “the trial court's failure
to reduce the amount of jail-time credit to a number of days, as required by
R.C. 2949.08(B), coupled with the absence of any opportunity for Wade to
be heard on the issue of jail-time credit, warrant[ed] remanding [the] matter
for the [trial] court to properly address the [jail-time credit] issue.” Id. at
¶ 15.
Similar to Wade, the trial court in this case awarded Windsor jail-time
credit “from February 12, 2021 until conveyance to [the Ohio Department of
Rehabilitation and Correction].” The trial court's duty, however, was to
calculate and specify the total number of days that Windsor had been
confined in jail for the instant offense as of the date of his sentencing
hearing. See State v. Davis, 2d Dist. Montgomery No. 27495, 2018-Ohio-
4137, ¶ 12 (“It is clear from the language in Ohio Adm.Code 5120-2-04 that
the trial court's obligation in calculating jail-time credit is limited to
calculating the number of days the defendant was confined prior to
sentencing.”). “At the time of sentencing, the trial court has no way of
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knowing how long it will take a defendant to be transported to prison after
the defendant has been sentenced; therefore, any days the defendant
spends in confinement while awaiting transportation to prison cannot
properly be included in the trial court's jail-time credit calculation.” Id. at
¶ 14. As a result, Windsor correctly asserts that the trial court erred by
failing to specify the total number of days of jail-time credit that he earned
as of the date of his sentencing hearing. Windsor also correctly asserts
that the trial court should have calculated his jail-time credit from the date
of his conveyance to the Clark County Jail (February 12, 2021) to the date
of his sentencing (April 1, 2021), for a total award of 48 days of jail-time
credit.
That said, “an inaccurate determination of jail-time credit at
sentencing is not grounds for setting aside the conviction or sentence and
does not otherwise render the sentence void or voidable.” Id. at ¶ 16, citing
R.C. 2929.19(B)(2)(g)(iv), State v. Norris, 7th Dist. Monroe No. 14 MO 7,
2014-Ohio-5833, ¶ 21, State v. Thompson, 8th Dist. Cuyahoga No. 102326,
2015-Ohio-3882, ¶ 21, and Thompson v. Saffold, 8th Dist. Cuyahoga No.
100774, 2014-Ohio-838, ¶ 4 (“a trial court's failure to properly calculate jail-
time credit as required by law does not affect the finality of a sentencing
order in a criminal case”). As explained in Wade, “the trial court's failure to
reduce the amount of jail-time credit to a number of days, as required by
R.C. 2949.08(B), coupled with the absence of any opportunity for [the
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defendant] to be heard on the issue of jail-time credit, warrant[s] remanding
th[e] matter for the court to properly address the issue.” Wade at ¶ 15.
In this case, the record indicates that Windsor was not given the
opportunity to be heard on the issue of jail-time credit at his sentencing
hearing. This is because the trial court's award of jail-time credit “from
February 12, 2021 until conveyance to [the Ohio Department of
Rehabilitation and Correction]” was specified only in the sentencing entry.
Therefore, we conclude that it is appropriate to remand this matter to the
trial court so that the court can address the jail-time credit issue by
specifying the total number of days of jail-time credit that Windsor had
earned as of the date of his sentencing.
(Footnote omitted.)
{¶ 20} We agree with the State that the trial court did not adequately calculate the
jail-time credit for Fleming, and that the trial court must reduce the amount of credit to a
number of days, as well as provide an opportunity for Fleming to be heard regarding this
calculation. Accordingly, Fleming’s second assignment of error is sustained.
{¶ 21} The trial court’s judgment is reversed in part, and the matter is remanded
for proper imposition of jail-time credit. In all other respects, the judgment of the trial
court is affirmed.
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WELBAUM, P.J. and TUCKER, J., concur.