State v. Cox , 2016 Ohio 20 ( 2016 )

[Cite as State v. Cox, 2016-Ohio-20.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102629
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DENITRA COX
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-584453-A
BEFORE: S. Gallagher, J., McCormack, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: January 7, 2016
ATTORNEY FOR APPELLANT
Thomas A. Rein
700 West St. Clair, Suite 212
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Ronni Ducoff
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Defendant-appellant, Denitra Cox (“Cox”), appeals her conviction on two
misdemeanor child endangering counts, one felony child endangering count, and two
felony abduction counts. The victims of the offenses were Cox’s three minor children.
The trial court sentenced Cox to eight years on the second-degree felony child
endangering charge, 36 months on each of the abduction charges, and time served on each
of the misdemeanor child endangering charges. The court ordered that the sentences be
served consecutively for an aggregate 14-year prison term. Cox now appeals her
sentences. For the following reasons, we affirm.
{¶2} In the first assignment of error, Cox argues the trial court erred by imposing
consecutive sentences without making the findings required by R.C. 2929.14(C). We
disagree.
{¶3} There is a presumption in Ohio that prison sentences should be served
concurrently, unless the trial court makes the findings outlined in R.C. 2929.14(C)(4) to
justify consecutive service of the prison terms. R.C. 2929.41(A). R.C. 2929.14(C)(4)
requires the court to find that (1) consecutive sentences are necessary to protect the public
from future crime or to punish the offender; (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public; and, as applicable to the current case, (3) the harm caused by
two or more of the multiple offenses, committed as part of one or more courses of
conduct, was so great or unusual that no single prison term adequately reflects the
seriousness of the offender’s conduct.
{¶4} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶
29, the Ohio Supreme Court held that
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.
The failure to make the findings results in the final sentence being “contrary to law.” Id.
at ¶ 37.
{¶5} In imposing the consecutive sentences in the current case, the trial court
stated, in relevant part:
By the way, I do want to add that [(1)] the sentences, I feel, do adequately
protect the community and punish the defendant here, and [(2)] it certainly
cannot demean the seriousness of the crime of each one of these counts,
which, [(3)] as I said, are separate victims, separate dates and take into
consideration the age of each of the victims and the relationship with them
to the defendant here.
Thus, the trial court first considered (1) whether consecutive service was necessary to
protect the public and to punish the defendant. The court also recognized that (2)
consecutive sentences were not disproportionate to Cox’s conduct. Although the trial
court spoke in terms of “demeaning the seriousness of the crimes,” the import of the
finding supersedes the language used. Bonnell. There is no practical difference
between the trial court finding the consecutive service of the prison sentences does not
demean the seriousness of Cox’s conduct underlying her crimes and that the same is not
disproportionate. See also State v. Wells, 8th Dist. Cuyahoga No. 100365,
2014-Ohio-3032, ¶ 18 (under pre-Bonnell case law, the panel concluded that the evidence
demonstrated that the harm caused to the victim was so great that a lesser sentence would
demean the seriousness of the crimes, and therefore, the disproportionate finding could be
satisfied on remand for the findings to be expressly made). In light of the fact that the
trial court’s findings were articulated in the same order as the statutory findings and the
second finding was meant to address the disproportionate finding, we can conclude the
trial court made the statutory findings. We agree with the dissent’s analysis, and in a
different context, the difference between the trial court’s use of the demeaning and
disproportionate language could be dispositive. In this case, the difference is not
relevant to the outcome.
{¶6} Finally, the trial court found that (3) Cox committed multiple offenses against
three child victims, and weighed the harms caused against the victims to their relationship
with Cox. The trial court’s final finding thus satisfied R.C. 2929.14(C)(4)(b), that the
harm caused by two or more of the multiple offenses justified the imposition of
consecutive service. As a result, we can discern from the record that the trial court
engaged in the correct analysis and made the required findings. We acknowledge that it
would have been a better practice to recite the statute’s verbiage to avoid any ambiguity
on appeal; however, the slight deviation from the statutory language satisfied the
requirements all the same. Bonnell at ¶ 29. We overrule Cox’s first assignment of error.
{¶7} In the second assignment of error, Cox argues the trial court erred by failing
to merge allied offenses of similar import. Cox did not raise an allied offense issue or
otherwise object to the sentences imposed by the trial court. She has forfeited her allied
offenses claim, except to the extent that it constitutes plain error. State v. Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-25, citing State v. Quarterman,
140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15-16.
{¶8} Pursuant to Crim.R. 52(B), appellate courts have discretion to correct
“‘[p]lain errors or defects affecting substantial rights notwithstanding the accused’s
failure to meet his obligation to bring those errors to the attention of the trial court.”
Rogers at ¶ 22. To prevail under a plain error analysis, the appellant bears the burden of
demonstrating that the trial court “deviated from a legal rule,” or that there was “an
‘obvious’ defect in the proceedings” that resulted in prejudice, i.e., the outcome of the
proceedings would have been different. Id. at ¶ 17-22.
{¶9} Under R.C. 2941.25(A), when the same conduct by the defendant “can be
construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be convicted
of only one.” In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Ohio Supreme Court outlined the test courts should employ when deciding whether two
or more offenses are allied offenses that merge into a single conviction under R.C.
2941.25. In a newly refined test, the Ruff court held that multiple offenses do not merge
if (1) the offenses are dissimilar in import or significance, (2) the offenses were
committed separately or against separate victims, or (3) the offenses were committed with
separate animus or motivation. Id. at syllabus.
{¶10} Cox pleaded guilty to second-degree child endangering as alleged in Count
8 of the indictment. Count 8 alleged that Cox neglected the medical needs of her son on
or about October 1, 2012, to April 29, 2013, and that the neglect of medical care resulted
in serious physical harm to the child. This count is unrelated to the offenses committed
against Cox’s daughters. Nor was Cox’s son a victim in either of Cox’s abduction
convictions, which crimes were committed against two separate victims. As a result,
none of the offenses against the three separate victims merge.
{¶11} As it relates to the counts involving the same child, in Count 15, Cox
pleaded guilty to an amended charge of abduction, which she committed against C.J. on
or about February 1, 2013, to August 21, 2013. In Count 18, Cox pleaded guilty to an
amended charge of child endangering, which she also committed against C.J. on or about
October 1, 2012, to February 28, 2013. These offenses were committed on different
dates and are therefore separate acts not subject to merger. Ruff.
{¶12} Finally, in Counts 23 and 30, Cox pleaded guilty to an amended charge of
abduction and an amended child endangering charge, respectively. The indictment
alleged that Cox committed both of these offenses against Z.C. on or about February 1,
2013, and August 31, 2013. Although these offenses were committed within the same
period of time, the facts alleged in the indictment indicate they were separate acts
committed at different times. The act of child endangering alleged in Count 23 occurred
when Cox left Z.C. alone and she burned herself. The abduction charge was based on
Cox restraining Z.C., a completely separate act from the child endangering. Therefore,
the offenses alleged in Counts 23 and 30 were separate offenses committed at different
times and are not subject to merger. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892. The second and final assignment of error is overruled.
{¶13} Cox’s conviction is affirmed.
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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
TIM McCORMACK, P.J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION
EILEEN T. GALLAGHER, J., DISSENTING:
{¶14} I respectfully dissent and would hold that the trial court failed to make a
finding that a consecutive sentence was not disproportionate to Cox’s conduct or to the
danger she poses to the public. The majority contends “[t]here is no practical difference
between the trial court finding the consecutive service of the prison sentences does not
demean the seriousness of Cox’s conduct underlying her crimes and that the same is not
disproportionate.” However, I believe ensuring that a particular penalty is sufficient to
punish an offender is only half the proportionality analysis.
{¶15} The requirement that a sentence not demean the seriousness of an offense is
designed to make sure that the penalty is severe enough to punish the offender for a
particular offense. Indeed, R.C. 2929.14(C)(4) requires the trial court to find that
consecutive service is necessary to punish the offender.
{¶16} Proportionality, however, requires that a particular penalty be commensurate
with the criminal conduct. A punishment may be insufficient to achieve a particular
penological purpose because the offender is under-punished. Conversely, a punishment
may be disproportionate if the penalty exceeds the amount of punishment necessary to
achieve the legislature’s penological purpose, i.e., retribution and deterrence. State v.
Cook, 83 Ohio St.3d 404, 415, 700 N.E.2d 570 (1998) (describing traditional aims of
punishment as retribution and deterrence).
{¶17} The concept of proportionality signifies both a floor (the least acceptable
punishment for a particular crime) and a ceiling (the highest-permissible punishment for a
particular crime). Ideally, punishments fall within the range of available punishments
and are sufficient, but not greater than necessary, to achieve a desired penological
purpose and are therefore proportionate. See, e.g., State v. Geddes, 8th Dist. Cuyahoga
No. 88186, 2012-Ohio-2626, ¶ 9 (holding that an aggregate 30-year consecutive prison
term was disproportionate to defendant’s conduct). See also Berry, Promulgating
Proportionality, 46 Ga. L.Rev. 69, 90 (2011); Ristroph, How (Not) to Think Like A
Punisher, 61 Fla. L.Rev. 727, 744 (2009).
{¶18} The United States Supreme Court adopted the principle of proportionality by
concluding that the Eighth Amendment privilege against cruel and unusual punishment
contains a proportionality guarantee. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct.
2909, 49 L.Ed.2d 859 (1976) (finding that a punishment is excessive if it is grossly out of
proportion to the severity of the crime). In Coker v. Georgia, 433 U.S. 584, 97 S.Ct.
2861, 53 L.Ed.2d 982 (1977), the Supreme Court used the proportionality doctrine to
support its finding that the death penalty was an unconstitutionally excessive punishment
for the rape of an adult woman. The court explained that “the Eighth Amendment bars
not only those punishments that are ‘barbaric’ but also those that are ‘excessive’ in
relation to the crime committed.” Id. at 592.
{¶19} Thus, proportionality, as a principle of law, is a criterion of fairness injected
into the sentencing process. R.C. 2929.14(C)(4) lists proportionality as a separate and
distinct finding in addition to the other findings enumerated in that section and in addition
to the purposes and goals of criminal sentencing set forth in R.C. 2929.11 and 2929.12.
State v. Gatewood, 8th Dist. Cuyahoga No. 101271, 2015-Ohio-1288, ¶ 13, citing State v.
Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 17 (8th Dist.). The failure to make each
separate finding renders the sentence “contrary to law.” State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶20} This court has consistently demanded that the trial court make a separate
proportionality finding beyond finding that consecutive service does not demean the
seriousness of the defendant’s conduct. For example, in State v. Norris, 8th Dist.
Cuyahoga No. 102104, 2015-Ohio-2857, ¶ 29, we held a consecutive sentence was
contrary to law even though the court found that no single prison term for any of the
offenses adequately reflected the seriousness of the offender’s conduct because the court
failed to make separate finding of proportionality. See also State v. McGee, 8th Dist.
Cuyahoga No. 99704, 2013-Ohio-4926, ¶ 15 (same); State v. Lebron, 8th Dist. Cuyahoga
No. 97773, 2012-Ohio-4156, ¶ 15 (same).
{¶21} The trial court in this case found that consecutive service did not “demean
the seriousness of the crime.” This finding indicates the court found that consecutive
prison terms were necessary to punish Cox. R.C. 2929.14(C)(4). The trial court also
noted there were two separate victims of tender age. Thus the court found that the harm
caused by “two or more of the multiple offenses, committed as part of one or more
courses of conduct, 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,” as required by R.C. 2929.14(C)(4)(a)-(c). See
R.C. 2929.14(C)(4)(b).
{¶22} However, the court never mentioned the word “disproportionate,” nor does
the court use any other language to describe a finding that a consecutive sentence “fits the
crime” or is “not excessive.” Although the trial court is not required to recite any
particular magic words when making its findings, we must be able to discern from the
record that the trial court engaged in the correct analysis. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29.
{¶23} Cox’s consecutive sentence does not “demean the seriousness” of her
conduct because she was not under-punished. It is doubtful that consecutive sentences
could ever demean1 the seriousness of the offender’s conduct. As previously stated, the
purpose of the proportionality finding in R.C. 2929.14(C)(4) is to prevent
over-punishment. For example, in making the proportionality finding, the trial court
could find that concurrent sentences would demean the seriousness of the offense.
{¶24} There is no way to ascertain from the court’s statements whether the court
considered and found that a consecutive sentence would not punish Cox excessively for
her conduct. Therefore, I would find Cox’s sentence to be contrary to law because the
trial court failed to consider whether consecutive sentences are disproportionate to the
seriousness of Cox’s conduct. For this reason, I respectfully dissent.
1 The word “demean” implies minimizing or lowering in status. See Collins
Dictionary, http://collinsdictionary.com/dictionary/english/ demeaning (accessed
Dec. 7, 2015).